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AMERICAN 


CONSTITUTIOJS^AL  LAW. 


BY 

J.  I.  CLARK  HARE,  LL.D. 


in  two  volumes. 
Vol.  IL 


BOSTON: 
LITTLE,  BROWN,  AND  COMPANY. 

1889. 


Copyright,  1888, 
Bt  J.  L  Clakk  Haee. 


■< 


Universitt  Press: 
John  Wilson  and  Son,  Cambridge. 


AMERICAN  CONSTITUTIONAL  LAW. 


LECTUEE  XXIX. 

A  Constitutional  Provision  that  Charters  shall  be  revocable,  binding 
on  the  Legislature,  and  precludes  an  Absolute  Grant,  —  The  Effect 
of  such  a  Declaration,  when  made  legislatively,  on  Subsequent  Char- 
ters. —  Question  in  the  Last-Named  Case  one  of  Intention.  —  Charter 
must  not  be  repealed  injuriously,  or  in  a  way  to  impair  Rights  acquired 
while  it  was  in  force.  —  A  Legislative  Grant  cannot  be  annulled  for 
Bribery,  nor  as  against  a  bona  fide  Purchaser  on  the  Ground  of  Fraud. 
—  When  the  Language  admits  of  two  Interpretations,  it  should  be 
construed  favorably  to  the  Public.  —  No  Sovereign  Right  or  Power 
will  pass  irrevocably,  unless  the  Intention  is  clear.  —  The  Right  to 
act  as  a  Body  Corporate  or  to  be  exempt  from  Taxation,  confined 
to  the  Original  Grantees,  and  insusceptible  of  Transfer  unless  the 
Charter  clearly  expresses  an  Opposite  Design.  —  The  Franchise  or 
Exemption  may  pass  by  a  Judicial  or  Private  Sale  where  the  Right  of 
Transfer  is  conferred  by  the  Charter  or  where  that  operates  as  a  Con- 
tract with  the  Purchaser. 

The  constitutional  prohibition  was  intended  as  a  check  on 
retroactive  legislation,  and  does  not  embrace  future  contracts ; 
and  hence  when  a  statute  or  the  Constitution  of  a  State  pro- 
vides that  charters  shall  be  revocable,  a  subsequent  act  of 
incorporation  will  be  subject  to  the  condition,  and  may  be 
repealed  without  impairing  any  obligation  which  it  is  incum- 
bent on  the  State  to  observe.  There  is  under  these  circum- 
stances no  contract,  but  simply  a  statutory  grant,  which  may 
be  repealed  by  the  same  or  any  succeeding  legislature.^  In 
the  Iron  City  Bank  v.  Pittsburgh,^  the  charter  under  which 
the  plaintiffs  claimed,  provided  that  the  bank  should  only  be 
taxed  for  State  purposes,  and  the  question  was  whether  it 
could  be  taxed  for  city  purposes.     The  court  held  that  the 

^  The  Monongahela  Navigation  Co.  v.  Coon,  6  Pa.  379;  The  Penn- 
sylvania R.  R.  Co.  V.  Duncan,  111  Pa.  352;  Bermingham  r.  Railroad 
Co.,  79  Ala.  465. 

2  37  Pa.  341. 


654  CONSTITUTIONAL  PEOVISION  THAT 

tax  was  clearly  valid,  because  the  Constitution  of  Pennsyl- 
vania, as  amended  in  1838,  declared  that  every  charter  giving 
banking  or  discounting  privileges  should  contain  a  clause 
authorizing  the  legislature  to  alter,  revoke,  or  annul  the  same 
whenever  it  was  in  their  opinion  injurious  to  the  Common- 
wealth. Although  no  such  clause  was  inserted  in  the  act 
incorporating  the  Iron  City  Bank,  it  referred  to  the  general 
banking  law,  which  conformed  to  the  constitutional  require- 
ment. A  contract  growing  out  of  the  acceptance  of  a  charter 
with  banking  and  discounting  privileges  was  moreover  neces- 
sarily subordinate  to  the  organic  law  and  subject  to  an  im- 
plied power  of  revocation  which  might  be  exercised  for  any 
sufiQcient  cause. 

In  the  Railroad  Co.  v.  Gaines,^  a  proviso  in  the  Constitution 
of  Tennessee  that  "all  taxation  shall  be  equal  and  uniform," 
was  held  on  like  grounds  to  preclude  the  legislature  from 
exempting  the  plaintiffs  in  error  from  their  share  of  the  public 
burdens,  and  thereby  occasioning  the  inequality  which  the 
Constitution  meant  to  avoid.  These  decisions  are  simply  an 
application  of  Mr.  Webster's  argument  in  the  Dartmouth  Col- 
lege Case,  that  the  Constitution  is  as  much  a  part  of  every 
statute  as  if  it  were  set  forth  in  the  preamble,  and  that  no 
one  who  claims  under  a  legislative  grant  or  contract  can 
allege  that  he  is  ignorant  of  the  organic  law,  or  assert  any 
right  which  it  forbids.  We  may  none  the  less  infer  that 
while  the  people  of  a  State  may  inhibit  the  legislature  from 
granting  any  right  or  privilege  that  will  be  beyond  legislative 
control,  the  reservation  of  a  power  to  alter  or  annul  private 
contracts  would  presumably  be  invalid,  as  an  attempt  to 
evade  the  plain  intent  of  the  Federal  Constitution  and  bring 
the  entire  field  of  contracts  within  the  reach  of  retroactive 
legislation. 2 

In  these  instances  the  power  of  revocation  was  reserved  in 
the  organic  law,  and  therefore  necessarily  inherent  in  every 
other;  but  a  legislative  declaration  that  all  future  charters 
shall  be  subject  to  modification  or  repeal,  will  enter  into  and 
qualify  every  subsequent  act  of  incorporation  which  does  not 

1  97  U.  S.  697.  *  See  Miller  v.  The  State,  15  Wallace,  478. 


CHARTEES   SHALL  BE  REVOCABLE.  655 

clearly  indicate  a  different  design.^  The  question,  neverthe- 
less, in  such  cases  is,  What  did  the  legislature  intend  ?  And  if 
their  purpose  appears  to  have  been  to  disregard  the  prior 
statute  and  enter  into  an  irrevocable  contract,  the  case  will 
fall  within  the  well-known  rule,  Leges  posteriores  priores  con- 
trarias  abrogant?  An  enactment  that  all  charters  of  incorpor- 
ation thereafter  granted  may  be  altered,  amended,  or  repealed 
by  the  legislature,  does  not  necessarily  apply  to  supplements 
to  a  pre-existing  charter,  nor  will  a  clause  which  declares  that 
*'  this  supplement,  and  the  charter  to  which  it  is  a  supple- 
ment, may  be  altered  or  amended  by  the  legislature,"  apply 
to  a  contract  with  the  corporation  made  in  a  supplement 
thereafter  passed.^  Such  statutory  reservations  of  the  right 
of  repeal,  unlike  similar  constitutional  provisions,  do  not  bind 
succeeding  legislatures  or  preclude  them  from  making  an  inde- 
feasible contract.  The  question  therefore  is  not  as  to  the  inter- 
pretation of  the  former  statute,  but  was  the  latter  meant  to  be 
irrevocable ;  and  if  such  appears  to  have  been  the  legislative 
intent,  it  should  be  upheld.  In  New  Jersey  v.  Yard  the  stat- 
utory grant  under  consideration  was  held  not  to  admit  of  such 
an  implied  qualification,  because  (1)  it  was  a  settlement  or 
compromise  of  an  existing  controversy  and  for  a  valuable 
consideration ;  (2)  the  contract  had  been  reduced  formally 
to  writing,  in  accordance  with  a  legislative  requirement ;  (3) 
the  terms  of  the  contract,  that  "  this  tax  shall  be  in  lieu  of 
all  other  taxation  or  imposition  whatsoever  by  or  under  the 
authority  of  this  State  or  any  law  thereof,"  implied,  in  view 
of  the  whole  transaction,  that  it  was  to  be  irrevocable.* 

The  presumption  that  a  general  law  forbidding  exemptions 
from  taxation,  or  providing  that  charters  shall  be  subject  to 
repeal  or  alteration,  qualifies  subsequent  statutory  grants,  is 
nevertheless  one  which  should  not  lightly  be  disregarded, 

^  Tomlinson  v.  Jessup,  15  Wallace,  454;  Miller  v.  The  State,  15  Id. 
478;  Atlantic  &  Gulf  R.  R.  Co.  v.  Georgia,  98  U.  S.  359;  Shields  v.  Ohio, 
95  Id.  319. 

2  New  Jersey  v.  Yard,  95  U.  S.  104. 

8  New  Jersey  v.  Yard,  95  U.  S.  104. 

*  New  Jersey  v.  Yard,  95  U.  S.  104. 


656  CHARTER  MUST  NOT  BE 

and  will  prevail  unless  distinctly  excluded  by  the  words  or 
tenor  of  the  instrument  which  is  alleged  to  be  exempt  from 
their  operation.^ 

A  declaration  in  an  organic  or  general  law  that  such  char- 
ters as  shall  be  thereafter  conferred  may  be  modified  or  re- 
voked, does  not  authorize  the  abrogation  of  rights  of  property 
acquired  under  the  operation  of  the  charter  while  still  in  force, 
and  such  a  deprivation  would,  on  the  contrary,  be  a  taking 
without  due  process  of  law,  and  as  such  invalid.^ 

Agreeably  to  the  language  held  in  some  instances,  a  charter 
cannot  be  repealed  arbitrarily  without  cause  assigned,  or  on 
manifestly  insufficient  grounds,  even  when  the  power  of  revo- 
cation is  reserved  in  terms  which  might  seem  to  leave  the  com- 
pany at  the  mercy  of  the  legislature.^  And  in  the  case  last 
cited  such  was  said  to  be  the  rule,  although  the  words  of  the 
Constitution  were  that  "  the  legislature  shall  have  power  to 
revoke  or  annul  any  charter  .  .  .  whenever  in  their  opinion  it 
may  be  injurious  to  the  citizens  of  the  Commonwealth,  in  such 
manner,  however,  that  no  injustice  shall  be  done  to  the  cor- 
porators." Agreeably  to  this  decision,  "  the  power  of  the 
legislature  over  grants  and  contracts  is  not,  even  when  re- 
served in  terms,  like  the  power  of  the  English  Parliament. 
It  corresponds  more  properly  to  that  of  the  English  Crown, 
as  to  which  it  is  certainly  the  established  rule  that  the  king 
cannot  derogate  from  his  own  grant ;  and  when  an  express 
power  is  reserved  in  a  certain  event  or  upon  certain  condi- 
tions, it  must  be  proved  affirmatively  that  the  event  has  oc- 
curred or  the  conditions  have  been  fulfilled.*  The  legislature 
is  not  the  final  judge  whether  the  casus  foederis  upon  which 
the  authority  to  repeal  depends  has  occurred." 

1  Greenwood  v.  The  Freight  Co.,  105  U.  S.  13. 

2  See  the  Sinking-Fund  Cases,  99  U.  S.  718;  Lothrop  v.  Stedman,  41 
Conn.  583;  Orr  v.  Backen  County,  81  Ky.  593. 

8  The  Sinking-Fund  Cases,  99  U.  S.  718;  Flint  Plank  Road  Co.  v. 
WoodhuU,  25  Mich.  99;  Shields  v.  Ohio,  95  U.  S.  324;  The  Common- 
wealth V.  The  Pittsburg  &  Connellsville  R.  R.  Co.,  58  Pa.  26,  46. 

4  The  Eastern  Archipelago  Co.  v.  Queen,  2  Ex.  B.  856;  Crease  v.  Bab- 
cock,  23  Pickering,  334  ;  The  Commonwealth  v.  Essex  Co.,  13  Gray,  239 ; 
The  Erie  R.  R.  Co.  v.  Northwestern  R.  R.  Co.,  26  Pa.  287. 


EEPEALED  AKBITRARILY.  657 

Agreeably  to  the  Louisiana  Code  of  1825,  "  corporations 
may  be  dissolved  when  the  legislature  deem  it  expedient 
for  the  public  interest,  provided  that  when  an  act  of  incorpor- 
ation imports  a  contract,  on  the  faith  of  which  individuals 
have  advanced  money  or  engaged  their  property,  it  cannot 
be  repealed  without  providing  for  the  reimbursement  of  the 
advances,  or  making  full  indemnity  to  such  individuals."  A 
charitable  institution  was  incorporated  subsequently  to  this 
enactment,  with  a  stipulation  that  it  should  be  perpetually 
exempt  from  taxation,  and  received  large  donations  in  aid  of 
its  beneficent  design ;  and  it  was  held  that  the  exemption  could 
not  be  abrogated  by  an  amendment  to  the  State  Constitution 
without  an  indemnity  for  the  sums  so  advanced,  which,  as  the 
charter  had  not  been  revoked,  would  be  payable  to  the  cor- 
poration and  constitute  an  offset  to  the  tax.  In  Tucker  v, 
Ferguson,!  and  The  West  Wisconsin  R.  R.  Co.  v.  The  Su- 
pervisors,^  which  were  relied  on  as  sustaining  the  right  of 
revocation,  the  exemption  was  purely  gratuitous,  and  formed 
no  part  of  the  act  of  incorporation ;  while  in  the  case  in  hand 
it  was  embodied  in  the  charter  and  held  forth  as  an  induce- 
ment for  its  acceptance  by  the  corporators  and  to  third  per- 
sons to  contribute  the  necessary  funds.  It  did  not  matter 
whether  the  gifts  were  before  or  after  the  amendment,  be- 
cause all  the  corporate  property,  present  or  future,  was  to  be 
exempt.^  It  results  from  this  decision  that  a  legislative  assur- 
ance or  stipulation  which  is  manifestly  intended  as  a  contract 
or  to  influence  the  conduct  of  third  persons  who  have  pur- 
chased stock  or  made  donations  on  the  faith  of  the  expec- 
tation so  created,  will  be  within  the  constitutional  safeguard, 
notwithstanding  a  previous  enactment  that  every  such  grant 
shall  be  revocable.* 

The  decisions  on  this  head  were  reviewed  by  the  Supreme 
Court  in  giving  judgment  in  the  Sinking-Fuud  Cases.^    It 

1  22  Wallace,  527. 

2  93  U.  S.  595. 

8  The  Asylum  v.  New  Orleans,  105  U.  S.  362. 
4  See  Miller  v.  The  State,  15  Wallace,  478,  499. 
6  99  U.  S.  718. 


658  WHAT  CAUSE  IS   SUFFICIENT, 

was  there  said :  "  In  granting  the  charter,  Congress  not  only- 
retained  but  gave  special  notice  of  its  intention  to  retain  full 
and  complete  power  to  make  such  alterations  and  amend- 
ments of  the  charter  as  come  within  the  just  scope  of  legis- 
lative power.  That  this  power  has  a  limit,  no  one  can  doubt. 
All  agree  that  it  cannot  be  used  to  take  away  property  already- 
acquired  under  the  operation  of  the  charter,  or  to  deprive  the 
corporation  of  the  fruits  actually  reduced  to  possession  of  con- 
tracts lawfully  made  ;  but  as  was  said  by  this  court  through 
Mr.  Justice  Clifford  in  Miller  v.  The  State,^  '  It  may  safely  be 
affirmed  that  the  reserved  power  may  be  exercised,  and  to 
almost  any  extent,  to  carry  into  effect  the  original  purposes 
of  the  grant  or  to  secure  the  due  administration  of  its  affairs 
so  as  to  protect  the  rights  of  stockholders  and  of  creditors, 
and  for  the  proper  distribution  of  its  assets,'  and  again  in 
Holyoke  Co.  v,  Lyman,^  « to  protect  the  rights  of  the  pub- 
lic and  of  the  corporators,  or  to  promote  the  due  admin- 
istration of  the  affairs  of  the  corporation.'  Mr.  Justice 
Field,  also  speaking  for  the  court,  was  even  more  explicit 
when,  in  Tomlinson  v.  Jessup,^  he  said :  '  The  reservation 
affects  the  entire  relation  between  the  State  and  the  cor- 
poration, and  places  under  legislative  control  all  rights, 
privileges,  and  immunities  derived  by  its  charter  directly 
from  the  State  ; '  and  again,  as  late  as  Railroad  Co.  v. 
Maine,*  "  by  the  reservation  .  .  .  the  State  retained  the 
power  to  alter  it  [the  charter]  in  all  particulars  constituting 
the  grant  to  the  new  company  formed  under  it,  of  corporate 
rights,  privileges,  and  immunities.'  Mr.  Justice  Swaine,  in 
Shields  v.  Ohio,^  says,  by  way  of  limitation,  '  the  alterations 
must  be  reasonable,  they  must  be  made  in  good  faith,  and  be 
consistent  with  the  object  and  scope  of  the  act  of  incorpora- 
tion. Sheer  oppression  and  wrong  cannot  be  inflicted  under 
the  guise  of  amendment  or  alteration.'  "  ^ 

1  15  Wallace,  498.  *  96  U.  S.  510. 

2  15  Wallace,  519.  ^  95  U.  S.  324. 
8  15  Wallace,  459. 

«  See  Zabriskie  v.  The  Railroad  Co.,  18  N.  J.  Eq.  178;  Ames  r.  The 
Railroad  Co.,  21  Minn.  255. 


A  LEGISLATIVE  QUESTION.  659 

The  weight  of  authority  is  that  when  there  are  no  quali- 
fying words,  and  the  power  of  revocation  is  reserved  abso- 
lutely, it  is  for  the  legislature  to  determine  when  the  occasion 
requires  its  exercise,  and  their  decision  cannot  be  reconsid- 
ered by  the  judiciary.^     The  law  was  so  held  in  Greenwood 
V.  The  Freight  Co.; 2  and  The  Bridge  Co.  v.  The  United 
States  2  went  still  farther,  by  deciding  that  where  Congress, 
in   sanctioning  the   erection   of  a  bridge  according  to  the 
charters  which   had   been  granted  by  Kentucky  and  Ohio, 
reserved  the  right  to  "  withdraw  the  assent  hereby  given  "  in 
case  the  bridge  should  at  any  time  obstruct  the  navigation  of 
the  river,  and  the  company  proceeded  to  erect  such  a  bridge 
as  the  charters  called  for,  the  question  whether  it  obstructed 
the  navigation  was  exclusively  for   Congress,  which   might 
require  it  to  be  altered  or  taken  down  without  compensating 
the  corporation.    Bradley,  J.,  said  that  in  whether  the  obliga- 
tion of  a  contract  has  been  impaired,  depends  on  a  prelimin- 
ary inquiry.  Is  the  contract  binding,  and  how  should  it  be 
construed?  and  where  the  State  is  a  party,  is  affected  by 
considerations  that  do  not  apply  among  individuals.     For  as 
the  object  in  establishing  legislative  assemblies  is  to  provide 
for  the  general  welfare,  they  should  not  adopt  any  measure 
that  cannot  be  repealed  if  it  proves  injurious,  or  unforeseen 
events  require  a  change.     A  statute  is  therefore  prima  facie 
a  declaration  of  a  legislative  purpose  which  may  be  revoked 
at  pleasure,  and  not  a  contract  that  must  be  observed  without 
regard  to  consequences.     The  question  is  one  of  intention  ; 
but  the  presumption  that  the  legislature  act  in  their  sover- 
eign capacity  as  lawgivers  is  strong,  and  should  not  be  disre- 
garded unless  the  contrary  appears  unmistakably. 

There  is  another  consideration  of  equal  moment.  The 
State  is  necessarily  at  a  disadvantage  in  dealing  through 
agents  whose  interests  are  not  involved,  or  may  be  at  vari- 
ance with  her  own,  and  entitled  to  the  protection  which 

^  Crease  v.  Babcock,  23  Pick.  334;  Worcester  v.  The  Railroad  Co., 
109  Mass.  103  ;  Spring  VaUey  Water  Works  v.  Schottler,  110  U.  S. 
847. 

a  105  U.  S.  13.  «  105  U.  S.  470. 


660  LEGISLATIVE   GRANT  CANNOT 

equity  affords  to  persons  who  hold  an  unequal  relation  and 
are  open  to  undue  influence  and  imposition. 

Agreeably  to  Fletcher  v.  Peck,^  it  is  not  admissible  to  prove 
that  a  legislative  grant  was  procured  by  bribery  or  fraud ;  and 
such  evidence  would  be  unavailing  if  received,  because  it 
might  well  be  that  a  majority  would  have  been  in  favor  of 
the  bill,  though  none  of  the  members  were  bribed.  Strong 
as  were  the  reasons  given  by  Chief-Justice  Marshall,  we  may 
believe  that  the  country  would  gain  financially  and  as  regards 
public  morals  if  legislators  knew  in  casting  their  votes  that 
their  course  could  be  scrutinized  in  a  court  of  justice,  and  no 
grant  that  was  unduly  obtained  allowed  to  stand.^  The  Com- 
monwealth is  nevertheless  protected  by  holding,  as  a  rule  of 
policy  rather  than  interpretation,  that  no  right  or  privilege 
shall  pass  by  an  act  of  assembly  which  is  not  set  forth  with 
such  clearness  as  will  enable  the  community  to  know  what  is 
conferred  or  repealed,  and  prevent  any  member  from  alleging 
ignorance  as  an  excuse;  and  the  Constitutions  of  many  of  the 
States  provide,  with  a  view  to  this  end,  that  the  subject  of 
all  bills  shall  be  clearly  expressed  in  the  title.  The  maxim, 
Omnia  contra  proferentem^  which  precludes  a  man  who  has 

1  6  Cranch,  138. 

2  Such  was  the  opinion  of  Chief-Justice  Black,  as  expressed  in  conver- 
sation while  acting  in  1874  in  the  Convention  which  framed  the  Constitu- 
tion of  Pennsylvania;  and  the  judicial  scrutiny  which  he  advocated  would 
be  preferable  to  the  official  oath  exacted  in  that  State,  which  casts  a  slur 
on  every  man  who  takes  it,  and  restrains  no  man  who  is  capable  of  the 
practices  which  he  is  required  to  abjure.  The  oath  reads  as  follows:  '*  I 
do  solemnly  swear  (or  affirm)  that  I  will  support,  obey,  and  defend  the 
Constitution  of  the  United  States  and  the  Constitution  of  this  Common- 
wealth, and  that  I  will  discharge  the  duties  of  my  office  with  fidelity; 
that  I  have  not  paid  or  contributed,  or  promised  to  pay  or  contribute, 
either  directly  or  indirectly,  any  money  or  other  valuable  thing  to  pro- 
cure my  nomination  or  election  (or  appointment),  except  for  necessary 
and  proper  expenses  expressly  authorized  by  law;  that  I  have  not  know- 
ingly violated  any  election  law  of  this  Commonwealth,  or  procured  it  to 
be  done  by  others  in  my  behalf ;  that  I  will  not  knowingly  receive,  directly 
or  indirectly,  any  money  or  other  valuable  thing  for  the  performance  or 
non-performance  of  any  act  or  duty  pertaining  to  my  office,  other  than 
the  compensation  allowed  by  law." 


BE  SET  ASIDE  FOR  BEIBERY.  661 

used  ambiguous  language,  and  thereby  milled  others,  from 
asking  that  it  shall  be  taken  in  the  sense  most  favorable  to 
himself,  is  consequently  inapplicable  to  the  Commonwealth  ;i 
and  when  a  charter  of  a  railway  company  or  the  grant  of  a 
franchise  in  any  other  form,  admits  of  a  reasonable  doubt,  it 
will  be  solved  in  favor  of  the  public  and  against  the  grantees, 
who  will  take  nothing  that  is  not  given  expressly  or  by  an 
implication  equally  plain  with  words.^  The  State  will  never, 
therefore,  be  presumed  to  have  parted  with  any  of  its  prerog- 
atives or  franchises  if  the  instrument  can  be  differently 
interpreted  without  doing  violence  to  the  words  considered 
severally  and  as  a  whole.^  Such  is  the  rule  in  England  as 
to  charters  from  the  Crown,  and  it  applies  in  the  United 
States  to  those  given  by  the  legislature.*  A  grant  of  the 
water-power  of  a  river  to  a  navigation  company  will  not 
confer  a  title  to  the  water  or  preclude  a  neighboring  town 
from  pumping  it  into  reservoirs  for  distribution  among  the 
inhabitants.^  So  a  grant  of  the  right  to  maintain  a  bridge 
and  collect  the  tolls,  does  not  debar  the  legislature  from 
authorizing  the  construction  of  a  free  bridge  beside  the  first, 
although  the  latter  is  thereby  rendered  valueless  as  a  means 
of  gain.^ 

In  the  case  of  The  Charles  River  Bridge  v.  The  Warren 

^  See  Douglass  v.  Reynolds,  7  Peters,  113;  2  American  Leading  Cases 
(5  Am.  ed.),  38,  45. 

2  2  Smith's  Leading  Cases  (7  Am.  ed.),  471. 

8  The  Susquehanna  Canal  Co.  v.  Wright,  9  W.  &  S.  11;  The  Bank  of 
Pennsylvania  v.  The  Commonwealth,  19  Pa.  155;  Stone  v.  The  Farm- 
ers' L.  &  T.  Co.,  116  U.  S.  307,  320;  The  Charles  River  Bridge  v.  The 
Warren  Bridge,  11  Peters,  544;  The  Ohio  Life  Insurance  &  Trust  Co. 
V.  Debolt,  16  Howard,  416;  Ruggles  v.  Illinois,  108  U.  S.  536.  As  is  said 
in  Black  on  Constitutional  Prohibitions,  sect.  52;  "The  rule  that  words 
are  to  be  taken  in  the  strongest  sense  against  the  party  using  them,  does 
not  apply  to  a  contract  by  a  State  embodied  in  a  charter,  for  the  promo- 
ters rather  than  the  legislature  must  be  considered  as  the  framers  of  the 
contract." 

*  The  Charles  River  Bridge  v.  The  Warren  Bridge,  11  Peters,  544. 

^  The  Mayor  v.  The  Commissioners,  7  Pa.  358. 

«  The  Charles  River  Bridge  v.  The  Warren  Bridge,  11  Peters,  544; 
Railroad  Commission  Cases,  116  U.  S.  307,  3^». 


662  AMBIGUOUS  WORDS  MUST  BE 

Bridge,^  the  controversy  was  whether  the  legislature  of  Mas- 
sachusetts could,  after  chartering  a  toll-bridge  between  Bos- 
ton and  Cambridge,  authorize  the  erection  of  a  free  bridge 
across  the  same  river  close  to  the  former  structure.  The 
court  was  divided  in  opinion ;  but  the  decision  was,  that  in 
the  absence  of  an  express  restriction  none  could  be  implied, 
and  both  grants  might  stand.  A  charter  was  not  like  the  gift 
of  a  specific  thing,  but  a  part  of  the  sovereign  power  of  the 
State  bestowed  on  individuals ;  and  as  the  first  grant  did  not 
exhaust  the  power,  it  might  be  exercised  a  second  time. 

The  principle  is  well  settled  ;  the  only  question  being 
how  far  it  extends.  In  The  Richmond  R.  R.  v.  Louisiana 
R.  R.,2  the  legislature  of  Virginia  had,  in  incorporating  the 
Richmond  Railroad,  stipulated  that  no  other  road  should  be 
built  between  Washington  and  Richmond  within  a  certain 
distance  that  would  presumably  diminish  the  number  of  pas- 
sengers on  the  complainant's  railway.  Another  company  was 
subsequently  authorized  by  charter  to  construct  a  railway 
having  one  terminus  at  Washington  and  the  other  at  Lynch- 
burg, which,  after  running  parallel  with  the  Richmond  Rail- 
road for  a  number  of  miles,  diverged.  The  Supreme  Court 
held  that  when  a  private  corporation  claimed  a  privilege  in 
diminution  of  the  public  right,  the  well-established  rule  of 
construction  was  that  any  ambiguity  in  the  contract  should 
operate  against  the  corporation  and  in  favor  of  the  public. 

Curtis,  J.,  dissented  on  the  ground  that  the  act  complained 
of  was  a  plain  infringement  of  the  contract.  The  rule  that 
grants  made  by  the  public  should  be  interpreted  favorably  to 
the  grantor  was,  like  its  converse,  fortius  contra  profereren- 
tern,  which  prevailed  in  private  grants,  the  last  to  be  applied, 
and  only  when  other  methods  of  interpretation  failed.  The 
only  safe  guide  was  the  intention  of  the  parties ;  and  when 
that  was  manifest,  or  could  be  ascertained,  it  must  prevail. 
In  the  case  under  consideration  the  stipulation  was  said  to 
relate  to  passengers  travelling  directly  from  one  city  to  the 
other.  The  word  "  between  "  might  admit  of  that  interpre- 
tation, but  did  not  require  it.     It  might  properly  designate 

1  11  Peters,  420.  ^  13  Howard,  71. 


TAKEN  FAVOEABLY  TO  THE   PUBLIC.  663 

any  part  of  the  intermediate  space  as  well  as  the  whole. 
What  was  intended  must  be  sought  in  the  residue  of  the 
sentence,  which  showed  that  the  object  was  to  prevent  com- 
petition ;  and  the  charter  should  be  so  construed  as  to  give 
effect  to  the  design.^ 

A  provision  in  the  charter  of  a  bridge  prohibiting  the  erec- 
tion of  another  bridge  will  not  preclude  the  construction 
of  a  viaduct  which  does  not  admit  of  ordinary  traffic  and 
is  designed  exclusively  for  the  passage  of  railway  trains. 
The  point  was  decided  by  the  Chancellor  of  New  York  in 
The  Mohawk  Bridge  Co.  v.  The  Utica  &  Schenectady  R.  R. 
Co.,2  and  recently  by  the  Supreme  Court  of  the  United 
States  in  The  Bridge  Proprietors  v.  The  Hoboken  Co.^  The 
court  said  that  a  railway  viaduct  was,  in  the  most  general 
sense  of  the  term,  a  bridge,  as  a  railway  car  was  a  carriage, 
but  that  the  case  was  one  of  the  many  instances  where  the 
same  word  was  from  necessity  used  to  express  things  differ- 
ing materially  in  their  nature.  The  doctrine  that  public 
grants  are  not  to  be  enlarged  by  implication  was  applied  in 
another  form  in  The  Turnpike  Co.  v.  The  State  ;  *  but  in  the 
case  of  the  Binghampton  Bridge  Co.,  already  cited,  a  stipula- 
tion that  one  company  should  have  all  the  rights  and  privi- 
leges that  had  previously  been  conferred  on  another,  was 
held  sufficiently  explicit  to  bind  the  State. 

The  rule  applies  a  fortiori  where  the  right  alleged  to  have 
been  surrendered  is,  like  that  of  taxation,  an  incident  to  sove- 
reignty and  essential  to  its  effectual  exercise.^    Neither  the 

1  See  2  Smith's  Leading  Cases  (7  Am.  ed.),  471. 

2  6  Paige,  564. 

8  1  Wallace,  116. 

4  3  Wallace,  211. 

»  The  Railroad  Commission  Cases,  116  U.  S.  307,  326;  The  Philadel- 
phia &  Wilmington  R.  R.  v.  Maryland,  10  Howard,  376;  The  Providence 
Bank  v.  Billings,  4  Peters,  514 ;  The  Bank  of  Pennsylvania  v.  The  Com- 
monwealth, 19  Pa.  144;  The  Bank  of  Easton  v.  The  Commonwealth, 
10  Id.  442;  The  Railroad  Co.  v.  Gaines,  97  U.  S.  697;  The  Erie  R.  R. 
Co.  V,  The  Commonwealth,  66  Pa.  84;  The  Delaware  R.  R.  Tax  Case,  18 
Wallace,  206,  226 ;  The  Memphis  R.  R.  Co.  v.  The  Commissioners,  112 
U.  S.  609,  617. 


664  EXEMPTION  FROM  TAXATION 

right  of  taxation  nor  any  other  sovereign  power  will  be  held 
to  have  been  relinquished  unless  the  intention  is  expressed 
in  terms  too  plain  to  be  mistaken.  Such  contracts  are  to 
be  rigidly  scrutinized,  and  never  allowed  to  extend  farther 
in  scope  or  duration  than  the  terms  clearly  require  ;  and  if  a 
doubt  arises,  it  must  be  solved  in  favor  of  the  State.^ 

In  The  Providence  Bank  v,  Billings,^  Marshall,  C.-J.,  said 
that  a  State  might  for  a  valuable  consideration  relinquish 
the  right  to  tax,  but  as  the  right  was  one  in  which  the  com- 
munity was  interested,  such  an  intention  ought  not  to  be  pre- 
sumed in  any  case  where  it  did  not  distinctly  appear  ;  and  in 
The  Easton  Bank  v.  The  Commonwealth,  a  charter  incorpora- 
ting a  bank  on  the  conditions  thereinafter  expressed,  one  of 
which  was  that  the  bank  should  pay  eight  per  cent  on  its 
dividends,  was  held  not  to  forbid  an  augmentation  of  the  tax. 

1  Vicksburg  R.  R.  Co.  r.  Dennis,  116  U.  S.  665,  668;  Newton  v.  The 
Commissioners,  100  U.  S.  548;  The  Delaware  R.  R.  Taxes,  18  Wallace, 
206;  The  Munson  Passenger  R.  R.  Co.  v.  Philadelphia,  101  U.  S.  528. 

"  The  rule  of  interpretation  is  well  settled  in  this  court.  In  Tucker 
».  Ferguson,  22  Wallace,  527,  we  said;  '  The  contract  must  be  shown  to 
exist.  There  is  no  presumption  in  its  favor.  Every  reasonable  doubt 
should  be  resolved  against  it.  Where  it  exists,  it  is  to  be  rigidly  scruti- 
nized, and  never  permitted  to  extend,  either  in  scope  or  duration,  beyond 
what  the  terms  of  the  concession  clearly  manifested  on  the  part  of  the 
State  to  grant  what  is  claimed.  Such  a  purpose  cannot  be  inferred  from 
equivocal  language.  Providence  Bank  v.  Billings,  4  Peters,  514;  Gilman 
V,  City  of  Sheboygan,  2  Black,  510.  It  must  not  be  a  mere  gratuity ;  there 
must  be  a  suflBcient  consideration,  or,  no  matter  how  long  the  alleged  right 
has  been  enjoyed,  it  may  be  resumed  by  the  State  at  its  pleasure.  Christ 
Church  V.  Philadelphia,  24  Howard,  300.  No  grant  can  be  raised  by  mere 
inference  or  presumption,  and  the  right  granted  must  be  clearly  defined. 
Charles  River  Bridge  v.  Warren  Bridge,  11  Peters,  420.  "  The  rule  of  con- 
struction in  this  class  of  cases  is  that  it  shall  be  most  strongly  against  the 
corporation.  Eveiy  reasonable  doubt  is  to  be  resolved  adversely.  Noth- 
ing is  to  be  taken  as  conceded  but  what  is  given  in  unmistakable  terms 
or  by  an  implication  equally  clear.  The  affirmative  must  be  shown. 
Silence  is  negation,  and  doubt  is  fatal  to  the  claim.  This  doctrine  is 
vital  to  the  public  welfare.  It  is  axiomatic  in  the  jurisprudence  of  this 
court."  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659;  Newton  v.  The 
Commissioners,  100  U.  S.  548. 

2  4  Peters,  514. 


MUST  BE  EXPLICIT.  665 

It  was  decided  on  like  grounds  in  The  Holyoke  Co.  v, 
Lyman  that  even  if  the  legislature  of  a  State  can  confer  an 
irrevocable  power  to  construct  a  dam  across  a  river  flowing 
through  two  or  more  States  which  will  permanently  exempt 
the  grantees  from  leaving  a  way  open  for  the  passage  of  fish, 
and  thus  materially  lessen  the  available  supply  of  food,  such 
an  intention  will  not  be  implied  from  the  grant  of  the  right 
to  erect  the  dam,  nor  unless  it  is  expressed  in  terms. ^ 

"  Charters  of  private  corporations  duly  accepted,  it  must 
be  admitted,  are  executed  contracts ;  but  the  different  pro- 
visions, unless  they  are  clear,  unambiguous,  and  free  from 
doubt,  are  subject  to  construction ;  and  their  true  intent  and 
meaning  must  be  ascertained  by  the  same  rules  of  interpre- 
tation as  other  legislative  grants.  Repeated  decisions  of  this 
court  have  established  that  whenever  privileges  are  granted 
to  a  corporation  and  the  grant  comes  under  revision  in  the 
courts,  such  privileges  are  to  be  strictly  construed  against 
the  corporation  and  in  favor  of  the  public,  and  that  nothing 
passes  but  what  is  granted  in  clear  and  explicit  terms.^ 
Whatever  is  not  unequivocally  granted  in  such  acts  is  taken 
to  have  been  withheld ;  as  all  acts  of  incorporation  and  acts 
extending  the  privileges  of  corporate  bodies  are  to  be  taken 
most  strongly  against  the  corporations."  ^ 

It  has  been  decided,  conformably  to  the  same  principle,  that 
a  statute  or  ordinance  authorizing  a  natural  or  artificial  per- 
son to  use  or  occupy  a  street  or  highway  is,  in  the  absence 
of  a  plainly  expressed  intention  that  the  right  shall  be  per- 
manent, a  mere  license  and  as  such  revocable,  although  the 
grantee  has  made  valuable  improvements  in  the  belief  that 
the  privilege  will  not  be  recalled.*  In  the  case  last  cited,  the 
city  councils  of  Philadelphia  gave  the  complainant  a  written 

1  Holyoke  Co.  v.  Lyman,  15  Wallace,  522. 

2  Rice  V.  Railroad  Co.,  1  Black,  380;  Charles  River  Bridge  v.  Warren 
Bridge,  11  Peters,  544. 

2  Sedgwick  on  Statute  and  Constitutional  Law,  339;  Lees  v.  Canal 
Co.,  11  East,  652;  Holyoke  Co.  v.  Lyman,  15  Wallace,  511. 

*  The  Southwark  R.  W.  Co.  v.  The  City  of  Philadelphia,  47  Pa.  St. 
314;  Branson  v.  The  City,  47  Pa.  329. 


Q66  GOVEENMENTAL  POWER  WILL  NOT 

permission  to  construct  a  turnout  or  siding  from  the  city  rail- 
way in  Broad  Street  to  his  warehouse.  The  city  subsequently 
proposed  to  remove  the  railway ;  and  the  complainant  asked 
for  an  injunction,  on  the  ground  that  he  had  gone  to  a  great 
expense  in  the  erection  of  fixtures  for  the  prosecution  of  his 
business,  which  would  be  useless  unless  the  railway  was 
allowed  to  remain.  The  court  held  that  if  a  license  to  con- 
nect a  private  with  a  public  way  might  operate  as  a  con- 
tract that  the  public  way  should  remain  open,  where  the 
question  arose  as  between  individuals,  it  did  not  admit  of 
such  an  interpretation  when  given  by  a  municipal  corporation 
and  the  streets  of  a  city  were  concerned.  A  like  view  was 
taken  in  The  Monongahela  Navigation  Co.  v.  Coons  ^  with 
regard  to  a  dam  which  had  been  erected  across  a  navigable 
stream  under  a  general  authority  conferred  by  statute. 

These  decisions  are  obviously  sound.  An  individual  who 
gives  a  license  which  cannot  be  enjoyed  without  the  expendi- 
ture of  money,  may  fairly  be  presumed  to  intend  that  it  shall 
be  irrevocable  ;^  but  no  such  inference  can  be  drawn  where 
the  State  or  a  city  is  dealing  with  a  highway,  and  ought  to 
retain  the  power  of  supervision  and  control. 

It  has  been  decided  on  like  grounds  that  the  enumeration 
of  particular  burdens  or  restrictions  in  a  charter,  as  those  to 
which  the  company  is  or  may  be  subjected,  will  not  preclude 
the  State  or  a  municipal  corporation  from  imposing  others 
which  fall  within  the  scope  of  its  general  powers,  and  are 
legitimate  if  they  do  not  contravene  the  constitutional  prohi- 
bition. A  statute  imposing  a  tax  of  eight  per  cent  on  each 
yearly  dividend  of  the  banks  which  it  incorporates,  will  be 
interpreted  as  meaning  that  they  shall  pay  so  much,  and  not 
that  the  rate  shall  not  be  increased  by  future  legislation. ^ 
So  the  incorporation  of  a  railway  company  with  authority  to 
pass  through  a  city,  subject  '*  to  such  regulations  as  may  be 
required  for  paving,  repairing,  and  culverting  the  streets," 

1  6  Watts  &  Sergeant,  101,  112. 

2  2  Am.  Leading  Cases  (5  Am.  ed.),  546 ;  Rerick  v.  Kern,  14  S.  &  R.  267. 
8  The  Bank  v.  The  Commonwealth,  10  Pa.  442,  449;  The  Bank  of 

Pennsylvania  v.  The  Commonwealth,  19  Pa.  144,  155. 


PASS  BY  IMPLICATION.  667 

will  not  preclude  the  city  councils  from  exacting  an  annual 
license  fee  of  thirty  dollars  for  each  car  and  prescribing  the 
charges  for  the  conveyance  of  passengers.^  '•'•  ExpresBio  unius 
exclusio  est  alterius  is  not,"  said  Sharswood,  J.,  "  the  rule  of 
construction  applicable  to  charters." 

In  like  manner,  the  power  of  a  State  to  regulate  the 
charges  of  railway  companies  for  the  transportation  of  per- 
sons and  property  within  her  limits  is  governmental,  "  and 
if  it  can  be  bargained  away  at  all,  it  can  only  be  by  words 
of  positive  grant,  or  something  which  is  in  law  equivalent." 
If  there  is  a  reasonable  doubt,  it  is  to  be  resolved  in  favor 
of  the  existence  of  the  power.  In  the  language  of  Chief- 
Justice  Marshall  in  the  Providence  Bank  v.  Billings,^  a  sur- 
render of  such  powers  "  ought  not  to  be  presumed  unless  the 
purpose  appears  to  have  been  deliberately  entertained  and  is 
distinctly  expressed."  ^ 

When  the  intention  to  confer  an  immunity  from  taxation 
is  distinctly  expressed,  or  a  necessary  inference  from  thQ 
words  employed,  the  court  will  not  resort  to  a  strained 
interpretation  for  the  sake  of  withholding  a  privilege  which 
may  have  been  the  chief  inducement  to  the  acceptance  of 
the  grant  or  charter.*  A  clause  in  an  act  of  incorporation 
providing  for  a  specific  tax  on  the  shares  of  a  bank,  and 
that  it  "  shall  be  in  lieu  of  all  others,"  is  in  effect  a  stipu- 
lation that  no  other  or  greater  tax  shall  be  imposed,  and  will 
be  binding  as  such  on  the  same  and  subsequent  legislatures. 
Where  the  legislature  of  Pennsylvania  authorized  a  railroad 
company,  chartered  by  the  State  of  New  York,  to  pass  through 
Pennsylvania,  and  subsequently  granted  the  same  company 
other  privileges  by  a  statute  which  imposed  a  tax  of  $10,000 
per  annum,  "together  with  such  further  taxation  of  their 

1  Johnson  v.  Philadelphia,  60  Pa.  440. 

2  4  Peters,  514,  561. 

«  Stone  V.  The  Farmers'  Loan  &  Trust  Co.,  116  U.  S.  307,  325;  Rail- 
road Co.  V.  Maryland,  21  Wallace,  456 ;  The  Chicago,  B.  &  Q.  R.  R.  Co. 
V.  Iowa,  94  U.  S.  155;  Ruggles  v.  Illinois,  108  Id.  526,  531. 

*  Farrington  v.  Tennessee,  95  U.  S.  679 ;  The  Commonwealth  v.  The 
Pennsylvania  Canal  Co.,  66  Pa.  46,  65. 
VOL.  n-  —  2 


668  EXEMPTION  FEOM  TAXATION 

stock  to  an  amount  equal  to  the  cost  of  construction  of  that 
part  of  their  road  situate  in  the  Commonwealth  as  similar 
property  in  this  State  is  or  may  be  subject  to,"  it  was  held  to 
be  an  implied  contract  which  precluded  additional  taxation.^ 
An  exemption  from  taxation  will,  in  obedience  to  the  gen- 
eral principle,  "  Nothing  is  to  be  taken  for  granted  against 
the  State,"  be  construed  as  the  personal  privilege  of  the 
individuals  or  company  on  whom  it  is  specifically  conferred, 
unless  the  manifest  intention  is  that  the  privilege  shall  pass 
as  a  continuing  franchise  to  assignees  or  purchasers.^  This 
rule  of  interpretation  is  founded  upon  an  obvious  public 
policy,  which  regards  such  exemptions  as  in  derogation  of 
the  sovereign  authority  and  the  duty  of  each  man  to  bear  his 
share  of  the  common  burden,  and  therefore  not  to  be  ex- 
tended beyond  the  exact  legislative  requirements  of  the  grant 
construed  strictissimi  Juris,  A  grant  to  one  company  of  all 
the  rights  and  privileges  of  another  may  carry  with  it  an  ex- 
emption from  taxation  conferred  in  the  former  charter  ;  ^  but 
a  sale  of  the  road-bed,  property,  and  franchises  of  a  railroad 
compan}?-  will  not  ordinarily  entitle  the  purchasers  to  the 
immunity  from  taxation  which  the  company  themselves  en- 
joyed,* nor  will  it  render  the  purchasers  a  body  corporate, 
or  entitle  them  to  act  otherwise  than  as  individuals.  The 
franchise  of  becoming  and  being  a  corporation  is  incommuni- 
cable by  the  act  of  the  parties,  and  will  not  pass  under  a  judi- 
cial sale,  unless  there  is  some  provision  to  that  effect  in  the 
charter  or  the  statute  by  which  the  sale  is  regulated.^    What 

1  The  New  York  &  Erie  R.  R.  Co.  v.  Sabin,  26  Pa.  242. 

2  Morgan  v.  Louisiana,  93  U.  S.  217;  Wilson  v.  Gaines,  103  Id.  417; 
Louisville  R.  R.  Co.  v.  Palmes,  109  Id.  244;  Memphis  R.  R.  Co.  v.  The 
Commissioners,  112  Id.  609,  617;  Chesapeake  &  Ohio  R.  R.  Co.  v.  Miller, 
114  Id.  176. 

3  Humphrey  v.  Pegues,  16  Wallace,  244;  The  Railroad  Co.  v.  Gaines, 
97  U.  S.  697. 

*  Morgan  v.  Louisiana,  93  U.  S.  217;  Memphis  R.  R.  Co.  v.  The  Com- 
missioners, 112  Id.  609. 

6  Commonwealth  v.  Smith,  10  Allen,  448;  Hall  v.  Sullivan  R.  R.  Co., 
21  Law  Reporter,  138;  2  Redfield's  Am.  Railway  Cases,  621;  Memphis 
R.  R.  Co.  r.  The  Commissioners,  112  U.  S.  609,  619. 


NOT  ASSIGNABLE.  669 

the  purchasers  acquire  is  the  ownership  of  the  railroad  and 
the  rolling-stock  and  other  property  requisite  for  its  use, 
and  the  franchise  of  maintaining  it  and  operating  it  as  such, 
—  privileges  which  may  be  as  well  exercised  by  natural  per- 
sons as  by  a  corporation.  As  was  said  in  the  Central  R.  R.  & 
Banking  Co.  v.  Georgia,^  it  is  an  unbending  rule  that  a  grant 
of  corporate  existence  is  never  implied.  In  the  construction 
of  statutes  every  presumption  is  against  it ;  and  the  principle 
applies  to  the  transfer  or  assignment  of  a  previously  existing 
charter  and  of  the  right  to  act  as  a  body  corporate  under  it. 

When,  however,  an  exemption  from  taxation  is  conferred 
with  a  view  of  enhancing  the  value  of  the  property  in  ques- 
tion and  inducing  third  persons  to  become  buyers,  it  may  be 
binding  not  only  in  favor  of  the  original  grantee,  but  of  every 
one  who  gives  value  in  the  belief  that  it  will  not  be  repealed,^ 
and  will  in  effect  run  with  the  property  or  land.  Charters 
obey  the  general  rule  that  contracts  do  not  operate  in  favor 
of  third  persons;  but  there  are  under  these  circumstances 
two  contracts,  one  with  the  first  takers,  the  other  with  the 
persons  who  deal  with  them  in  reliance  on  the  assurance 
held  forth  by  the  State. 

In  the  case  first  cited,  the  State  of  New  Jersey  purchased 
the  Indian  title  to  lands  in  that  State,  and  as  a  consideration 
for  the  purchase  bought  another  tract  of  land  as  a  residence 
for  the  Indians,  having  previously  passed  an  act  declaring  that 
such  lands  should  not  be  subject  thereafter  to  any  tax  by  the 
State,  any  law  or  usage  or  law  then  existing  to  the  contrary 
notwithstanding.  The  Indians  lived  upon  the  tract  until  the 
year  1801,  when  they  were  authorized  to  sell  it  by  an  act  which 
contained  no  provision  in  respect  to  future  taxation.  The 
sale  took  place,  and  the  legislature  soon  afterwards  repealed 
the  exemption  and  laid  a  tax,  which  the  Supreme  Court  of 
the  United  States  declared  invalid.     Although  the  privilege 

1  92  U.  S.  665,  670. 

2  M'Gee  /;.  Mathis,  4  Wallace,  143;  Hartman  v.  Greenhow,  102  U.  S. 
679.  See  Woodruff  v.  Trapnell,  10  Howard,  190;  Furman  v.  Nichol,  8 
Wallace,  44;  Exchange  Bank  v.  Knoup,  19  Grattan,  739;  Antoni  r. 
Wright,  22  Pa.  833;  847  for  the  same  principle.     See  ante,  p.  587. 


670  EXEMPTION  MAY  KUN  WITH 

was  given  for  the  benefit  of  the  Indians,  it  was  annexed  to 
the  land  which  had  been  given  in  lieu  of  the  property  which 
they  surrendered,  and  they  were  entitled  to  profit  by  it  not 
only  while  they  resided  on  the  land,  but  through  the  in- 
creased value  in  the  event  of  a  sale.  A  like  interpretation 
was  put,  in  McGee  v.  Mathis,  on  a  legislative  issue  of  trans- 
ferable scrip  for  work  done  in  the  drainage  of  certain  swamp- 
lands, with  a  proviso  that  it  should  be  received  in  payment 
for  so  much  of  the  lands  as  the  holder  should  select,  which 
should  be  exempt  from  taxation  for  the  term  of  ten  years. 
The  plaintiff  subsequently,  and  before  the  passage  of  a  law  by 
which  the  exemption  was  repealed,  became  the  purchaser  for 
a  valuable  consideration  of  a  large  amount  of  the  scrip,  and 
with  it,  after  the  repeal,  took  up  and  paid  for  many  sections 
of  the  land.  The  court  held  that  the  privilege  inured  not 
only  to  the  persons  to  whom  the  scrip  was  issued,  but  to  every 
one  to  whom  it  was  afterwards  assigned,  and  that  the  land 
could  not  be  taxed  during  the  stipulated  period  consistently 
with  the  Constitution  of  the  United  States.^ 

The  current  of  decision  sometimes  varies  like  the  tides,  as 
every  lawyer  finds  who  relies  on  precedents,  and  in  Morgan 
V.  Louisiana  ^  the  court  reached  a  different  conclusion  under 
circumstances  which  might  have  been  thought  analogous. 
The  legislature  there  exempted  the  capital  stock,  works, 
fixtures,  vehicles  of  transportation,  and  other  appurtenances 
of  a  railway  company  from  taxation,  and  also  empowered  the 
company  to  borrow  such  sums  of  money  as  might  be  requi- 
site, and  secure  the  same  by  a  mortgage  of  their  property 
and  franchises.  A  mortgage  having  been  executed  in  pursu- 
ance of  the  power,  the  mortgagee  proceeded  to  judgment 
and  execution,  and  the  property  and  franchises  of  the  com- 
pany were  sold  by  the  sheriff  and  purchased  by  the  defend- 
ant in  error  Morgan  ;  and  it  was  held  that  the  exemption  from 
taxation  was  personal  to  the  company,  and  did  not  pass  by 

*  New  Jersey  r.  Wilson,  7  Cranch,  164;  Given  v.  Wright,  117  U.  S. 
648,  655;  Jefferson  Branch  Bank  v.  Skelly,  1  Black,  436;  M'Gee  v. 
Mathis,  4  Wallace,  146. 

a  93  U.  S.  217. 


THE  LAND  WHEN  SO  DESIGNED.  671 

the  sale.  Such  an  immunity  might  loosely  be  called  a  fran- 
chise, but  did  not  come  under  that  head  when  appertaining 
to  a  railway  company.  Tlie  franchises  of  such  a  corporation 
are  the  rights  and  privileges  essential  to  the  operation  of  the 
road,  and  without  which  it  would  be  of  little  value  ;  such  as 
the  franchise  to  run  cars,  to  take  tolls,  to  appropriate  earth 
and  gravel  for  the  bed  of  its  road,  or  water  for  its  engines, 
and  the  like.  They  are  the  positive  rights  or  privileges, 
without  which  the  road  cannot  be  successfully  worked.  Im- 
munity from  taxation  is  not  one  of  them.  The  former  may 
be  conveyed  to  a  purchaser  of  the  road  as  part  of  the  prop- 
erty of  the  company ;  the  latter  is  personal,  and  incapable 
of  transfer  without  an  express  statutory  direction.  Where 
"  such  rights  and  privileges  "  are  expressly  stated  to  be  con- 
ferred "  for  the  purpose  of  making  and  using  the  road,"  an 
accompanying  exemption  from  taxation  is  presumably  con- 
fined to  the  grantee,  unless  the  circumstances  or  words 
employed  indicate  that  it  was  meant  to  be  susceptible  of  sale 
or  transfer.!  No  one  contends  that  a  statute  exempting  the 
property  of  a  charitable  or  literary  institution  will  run  with 
the  land  to  a  purchaser,  although  the  privilege  may  attach 
to  the  property  bought  with  the  proceeds  of  the  land  so 
conveyed. 

The  acts  of  a  legislative  assembly  are  presumably  laws 
susceptible  of  modification  or  repeal  by  the  same  or  any 
subsequent  legislature,  and  to  render  them  irrevocable  the 
intention  must  appear  with  a  clearness  which  cannot  be  mis- 
understood. Such  would  seem  to  be  the  true  import  of  the 
case  of  Lord  -y.  Litchfield ,2  and  the  principle  was  applied  in 
The  People  v.  Roper.^  The  legislature  there  enacted  that  the 
property  of  all  persons  who  should  serve  in  the  militia  for 
seven  years  should  be  exempt  from  taxation,  and  the  statute 
w^as  held  to  be  merely  declaratory  of  an  existing  legislative 
intent,  and  not  a  contract.* 

^  Morgan  v.  Louisiana,  93  U.  S.  217. 

2  36  Conn.  116.     See  a7ite,  p.  590. 

»  35  N.  Y.  630. 

*  "  Had  specific  contracts  been  entered  into  with  each  of  the  relators 


672  STATUTES  ARE  NOT  CONTRACTS. 

'  that  if  he  would  volunteer  to  equip  himself  and  perform  militia  duty 
at  stated  periods  during  the  next  seven  years,  he  should  thenceforth  be 
released  from  all  future  obligations  due  from  him  as  a  citizen  to  the  govern- 
ment,' it  would  be  material  to  consider  whether  the  people  had  clothed 
their  agents  with  authority  to  enter  into  such  an  engagement.  The  mere 
fact  that  there  was  the  form  of  a  contract,  and  that  those  who  made  it 
intended  that  it  should  not  only  be  operative  but  indissoluble,  would  not 
necessarily  bring  it  within  the  protection  of  the  Federal  Constitution. 
The  clause  in  that  instrument  which  prohibits  the  passage  of  State  laws 
'  impairing  the  obligation  of  contracts,'  applies  only  to  contracts  which 
impose  obligations  under  the  general  principles  of  law.  It  does  not  ex- 
tend to  those  which  are  void  in  their  origin  under  the  State  Constitution, 
nor  to  those  entered  into  without  authority  from  the  party  sought  to  be 
bound.  We  find  nothing  in  the  decisions  of  the  State  or  the  federal 
courts  which  leads  us  to  suppose  that  such  a  contract  could  be  enforced 
after  legislative  revocation.  In  the  present  case  the  claim  is  limited  to 
a  partial  release  of  the  citizen  from  his  future  obligations  to  the  govern- 
ment as  a  promised  reward  for  voluntary  and  meritorious  services.  It  is 
substantially  conceded  that  they  were  services  which  the  State  had  a  right 
to  command,  and  that  the  only  evidence  of  its  purpose  to  acknowledge 
them  by  a  future  gratuity  is  to  be  found  in  a  provision  of  the  general  law 
which  it  had  an  undoubted  right  to  repeal.  It  is  claimed,  however,  that 
the  law  thus  repealed  contained  within  itself  an  irrepealable  contract, 
imposing  obligations  on  the  State  which  the  federal  courts  are  bound  to 
enforce. 

"  It  is  true  that  the  State  may,  if  it  will,  within  the  limits  prescribed  in 
its  organic  law,  enter  into  private  contracts  with  its  citizens  by  which 
the  people  and  the  government  are  forever  bound ;  but  we  are  never  to 
construe  a  general  statute  as  embracing  such  a  purpose  when  it  is  obvious 
that  it  was  designed  only  as  an  expression  of  the  legislative  will  for  the 
time  being  in  a  matter  of  mere  municipal  regulation.  When  this  is  the 
object  of  the  law,  those  who  act  upon  the  faith  of  its  provisions  do  so 
with  a  reasonable  assurance,  indeed,  that  it  will  not  be  modified  or  re- 
pealed until  such  action  shall  be  required,  in  the  judgment  of  the  legisla- 
ture, by  the  general  interest  of  the  community,  but  with  notice  that  it  is 
subject  to  revocation  by  the  State  whenever  the  public  exigencies  may 
demand.  Such  a  repeal  involves  no  breach  of  obligation  in  the  sense  of 
the  Federal  Constitution;  for  the  faith  reposed  is  on  the  stability  of  a 
general  law,  and  not  on  the  efficacy  of  a  legal  contract."  The  People  v. 
Roper,  35  N.  Y.  630. 


LECTUKE   XXX. 

The  Obligation  of  a  Contract  arises  from  the  Command  of  the  Law  that  it 
shall  be  fulfilled.  —  The  Obligation  will  be  impaired  by  revoking  the 
Command  or  rendering  the  Means  of  enforcing  it  ineffectual.  —  The 
Remedy  may  be  abrogated  or  changed  if  a  Sufficient  Remedy  is  substi- 
tuted or  remains,  but  any  Alteration  in  the  Time  or  Mode  of  Perform- 
ance or  Measure  of  Damages  for  the  Breach  is  unconstitutional.  — 
The  Prohibition  is  designed  to  guard  against  Retroactive  Legislation, 
and  will  not  be  violated  by  a  Law  which  affects  only  Subsequent  Con- 
tracts. —  A  State  may  enact  a  Bankrupt  or  Insolvent  Law  as  to 
Future  Contracts,  but  not  as  to  those  already  made.  —  The  Legisla- 
ture cannot  authorize  a  Debtor  to  pay  the  Creditor's  Taxes  and 
deduct  them  from  the  Debt.  —  A  Law  providing  that  the  Bonds  or 
Scrip  issued  by  the  State  shall  be  received  in  Payment  of  Taxes, 
cannot  be  repealed  as  to  subsequent  Holders.  —  Chartered  Privileges 
cannot  be  abrogated  except  under  the  Police  Power  or  Right  of  Emi- 
nent Domain. 

If  we  now  inquire  what  is  the  obligation  which  may  not 
be  impaired,  the  answer  will  be  such  as  would  naturally 
spring  from  the  reflection  that  the  prohibition  is  contained 
in  the  organic  law  and  intended  to  control  legislation.  The 
moral  obligation  of  a  contract,  or  that  arising  from  the  natu- 
ral law,  is  beyond  the  reach  of  law-makers,  and  would  exist 
though  they  were  to  declare  all  contracts  null,  or  provide 
that  compensation  should  not  be  recovered  in  the  event  of  a 
breach.  "What  the  framers  of  the  Constitution  therefore  pre- 
sumably had  in  view  was  the  obligation  resulting  from  the 
remedies  through  which  the  contract  may  be  enforced.  These 
are  creatures  of  the  law,  and  if  they  are  repealed  or  rendered 
ineffectual,  the  obligation  of  past  contracts  is  necessarily  im- 
paired ;  but  no  such  alteration  will  occur  in  contracts  made 
subsequently  in  subordination  to  the  statute  which  works  the 
change,  and  have  no  legal  eflBcacy  save  that  which  it  confers. 
In  the  former  case  the  change  disappoints  the   reasonable 


674  THE  OBLIGATION  WHICH  MAY  NOT 

expectation  of  the  creditor  that  no  law  will  be  made  with 
the  view  of  enabling  the  debtor  to  violate  the  contract 
with  impunity,  and  may  be  regarded  as  a  breach  of  public 
faith ;  in  the  latter  no  one  can  allege  that  he  was  misled  and 
did  not  know  in  entering  into  the  contract  that  there  were 
no  means  through  which  it  could  be  enforced.  The  just  in- 
ference, therefore,  is,  that  the  clause  in  question  was  intended 
as  a  check  on  retroactive  legislation,  and  that  the  legislature 
are  free  to  declare  future  contracts  void,  or  that  their  only 
sanction  shall  be  the  shame  of  bad  faith  and  the  sentiment 
which  prompts  men  to  keep  their  word. 

The  question  arose  in  Ogden  v,  Saunders,^  and  gave  rise 
to  a  division  of  opinion  in  the  Supreme  Court  of  the  United 
States.  The  point  in  controversy  was,  Does  a  discharge  un- 
der a  State  insolvent  law  constitute  a  defence  to  an  action 
on  a  contract  made  after  the  passage  of  the  law  ?  or,  in  other 
words,  Can  the  legislature  provide  a  means  through  which 
subsequent  contracts  may  be  rendered  legally  inoperative 
or  annulled  ?  Marshall,  C.-J.,  Story  and  Daniel,  J  J.,  were 
of  opinion  that  the  obligation  springs  directly  from  the 
contract.  It  is  what  the  parties  have  agreed  to  do  or  to 
forbear.  Any  law  which  prospectively  or  retroactively  dis- 
cliarges  one  party  without  the  consent  of  the  other,  impairs 
the  obligation.  It  is  fallacious  to  suppose  that  the  law  by 
which  a  contract  is  enforced,  forms  a  part  of  the  contract. 
If  it  did,  it  would  accompany  the  parties  to  any  other  coun- 
try to  which  they  might  remove,  and  be  binding  on  them 
there,  although  contrary  to  the  law  of  the  forum.  Although 
a  contract  cannot  be  enforced  without  a  remedy,  the  remedy 
is  distinct  from  the  obligation.  The  States  may  modify  or 
control  the  former;  they  have  no  control  over  the  latter. 
It  was  conceivable  that  a  State  might  withhold  all  remedy 
without  violating  the  Constitution.  If  she  chose  to  close  her 
courts,  what  power  could  open  them  ? 

The  majority  of  the  court  gave  a  different  and,  as  it  would 
seem,  more  practical  interpretation  to  the  Constitution.  The 
obligation  of  a  contract  is  the  force  by  which  the  parties  are 

» 12  Wheaton,  213. 


BE  IMPAIRED.  675 

held  to  what  they  have  agreed  on.  Agreeably  to  the  Insti- 
tutes, obligation  is  the  chain  of  the  law  by  which  we  are  com- 
pelled to  render  something  prescribed  by  law.  In  the  case  of 
contracts,  the  command  of  the  law  that  they  shall  be  fulfilled, 
constitutes  the  obligation.  In  ascertaining  the  obligation  of  a 
contract,  it  is  therefore  necessary  to  consider  not  only  what 
the  parties  stipulated,  but  how  far  it  was  binding  under  the 
then  existing  law.  If  that  law  pronounced  the  contract  void, 
it  had  no  obligation ;  and  so  if  it  held  that  the  contract  might 
be  avoided  on  the  happening  of  a  particular  event,  the  obliga- 
tion would  fail  when  the  contingency  occurred.  What  the 
Constitution  designed  to  prohibit,  was  retroactive  legislation, 
A  statute  declaring  an  antecedent  contract  void,  or  providing 
means  through  which  it  might  be  annulled,  impaired  the  obli- 
gation by  making  it  less  than  it  was  when  originally  incurred. 
But  such  a  statute  would  not  impair  the  obligation  of  a  future 
contract,  because  the  obligation  came  from  the  law  and  was 
what  that  made  it.  In  tlie  case  under  consideration,  the  debt 
was  contracted  after  the  passage  of  the  statute  under  which 
the  debtor  had  been  discharged.  Had  the  creditor  been 
domiciled  in  the  State,  the  certificate  would  have  been  valid ; 
as  he  resided  elsewhere  and  had  not  voluntarily  submitted  to 
the  jurisdiction  of  the  court,  it  was  inoperative.  Such  is  now 
the  settled  interpretation  of  the  Constitution.^ 

Three  elements  enter  into  the  obligation  of  a  contract,  — 
the  contract,  the  command  of  the  law  that  it  shall  be  fulfilled, 
and  the  remedy  which  renders  the  command  obligatory,  and 
without  which  it  would  be  an  empty  form.  There  must  not 
only  be  an  agreement  which  the  parties  are  morally  bound 
to  perform,  but  the  courts  must  recognize  the  duty  as  one 
which  can  be  reduced  to  judgment ;  and  finally,  there  must  be 
some  sufficient  means  of  carrying  the  judgment  into  effect. 
If  the  union  of  both  minds  in  a  common  purpose  constitutes 
the  contract,  the  judgment  is  the  command  that  it  shall  be 
performed,  and  the  execution  the  force  by  which  obedience 
is  compelled.  Where  the  contract  is  defective  in  form,  in 
consideration,  forbidden  by  statute,  or  for  an  immoral  end, 

1  Boyle  V.  Zacharie,  6  Peters,  348;  Baldwin  v.  Hale,  1  Wallace,  223. 


676  THE  PEOHIBITION  APPLIES 

there  is  no  command,  or,  in  other  words,  no  right  to  judgment ; 
and  such  is  also  the  case  if  no  constitutional  prohibition  in- 
tervenes when  the  legislature  vacates  a  contract  which  was 
valid  under  the  pre-existing  law.  Finally,  the  command 
must  be  compulsory  on  the  parties.  There  must  be  a  remedy 
by  which  performance  can  be  enforced,  or  compensation 
obtained  if  it  is  withheld. 

It  results  from  what  has  been  said  that  the  obligation  of  a 
contract  is  the  law  acting  on  the  contract  and  rendering  it 
binding  on  the  parties.  The  contract  is  the  occasion,  the 
law  the  cause,  of  the  obligation.  So  long  as  the  law  remains 
what  it  was  when  the  contract  was  made,  the  obligadon  will 
not  be  impaired.  Prospective  legislation  will  not,  therefore, 
contravene  the  provision  which  is  the  theme  of  the  present 
chapter.^  But  a  law  operating  retroactively,  by  which  one 
party  is  exonerated  or  an  additional  duty  is  imposed  on  the 
other  as  a  condition  precedent  to  the  right  of  suit,  is  mani- 
festly unconstitutional,  and  void.  An  act  rendering  notice 
essential  to  a  recovery  against  guarantors  or  irregular  indors- 
ers  who  were  not  entitled  to  notice  under  the  previous  course 
of  decision,  is  invalid  within  this  principle,  though  it  does 
not  apply  to  acts  requiring  pre-existing  grants,  mortgages,  or 
judgments  to  be  docketed  or  registered  in  order  to  preserve 
the  obligation  and  inform  purchasers,  and  giving  a  reasonable 
time  for  compliance. ^ 

The  second  question.  What  laws  impair  the  obligation? 
depends  on  the  principle  which  governs  the  first.  For  as  the 
obligation  results  from  the  command  of  the  law  that  the  con- 
tract shall  be  fulfilled,  any  law  which  revokes  the  command 
or  renders  it  inefficacious  will  necessarily  impair  the  obligation. 
Such  a  result  may  ensue  from  an  enactment  annulling  the 
contract  or  declaring  the  whole  or  any  part  of  it  invalid,  or 
by  which  the  injured  party  is  hindered  or  delayed  in  proceed- 
ing to  judgment,  or  in  carrying  the  judgment  into  execution. 
In  the  two  former  instances  the  law  dispenses  with  instead  of 

1  Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388,  301. 

2  Jackson  u.  Lamphire,  3  Peters,  280;  Hoff  v.  Jasper  County,  110 
U.  S.  53. 


ONLY  TO  PAST  CONTRACTS.  677 

enjoining  performance  ;  in  the  latter  the  command  is  not  im- 
perative, and  may  be  disobeyed.  A  command  implies  compul- 
sion, the  existence  of  some  means  to  enforce  obedience,  and 
where  contracts  are  in  question,  consists  in  the  remedy  given 
for  the  breach.  A  law  modifying  the  remedy,  or  substituting 
one  remedy  for  another,  will  not  impair  the  obligation  if  a 
sufficient  remedy  remains.^  There  is  still  a  command  and  a 
penalty  for  disobedience ;  but  a  law  denying  all  remedy  for 
the  non-fulfilment  of  a  prior  contract,  or  subjecting  the  exist- 
ing remedies  to  a  condition  by  which  they  may  be  frustrated 
or  indefinitely  postponed,  is  necessarily  unconstitutional 

We  are  now  in  a  position  to  define  the  duty  which  the 
Constitution  of  the  United  States  imposes  on  the  States  rela- 
tively to  the  obligation  of  contracts.  It  is,  first,  that  there 
shall  be  no  change  in  the  rule  or  command  by  which  the  per- 
formance of  the  contract  is  enjoined,  and  next,  that  there  shall 
be  no  such  change  in  the  remedy  as  will  render  the  command 
illusory .2  A  statute  giving  three  days  of  grace  for  the  pay- 
ment of  promissory  notes  and  bills  of  exchange,  and  prescrib- 
ing the  time  and  mode  of  demand  and  notice,  might  be  to  a 
great  extent  declaratory,  and  regulate  or  define  without  im- 
pairing the  obligation  of  instruments  made  before  or  subse- 
quently to  its  passage.  A  statute  providing  retroactively  that 
such  instruments  shall  be  paid  at  the  day  might  not  impair 
the  obligation  relatively  to  the  creditor,  although  it  would  be  a 
deprivation  without  due  process  of  law  as  regards  the  debtor. 
But  a  statute  postponing  the  performance  of  an  antecedent 
contract,  although  but  for  a  single  day,  would  be  as  repug- 
nant to  the  constitutional  prohibition  as  if  the  delay  were  for 
a  month  or  year. 

The  principle  is  accurately  stated  in  the  following  extract 
from  the  judgment  of  the  Supreme   Court   of  the   United 

1  Story  V.  Furman,  25  N.  Y.  214;  Coriell  v.  Ham,  4  Greene  (Iowa), 
455;  Conkey  v.  Hart,  4  Kernan,  22;  Evans  v.  Montgomery,  4  W.  &  S. 
218;  Long's  Appeal,  87  Pa.  114;  The  llaikoad  Co.  v.  Hecht,  95  U.  S. 
168. 

2  Penrose  v.  The  Erie  Canal  Co.,  56  Pa.  46;  Seibert  v.  Lewis,  122 
U.  S.  284,  295. 

»  Farmers'  Bank  v.  Gunnell,  26  Grattan,  144. 


678  ANY  VARIATION  OF  THE   CONTRACT 

States,  in  the  case  of  Von  Hoffman  v.  Quincy/  which  was 
recently  cited  and  followed  by  the  same  tribunal^;  "  A  stat- 
ute of  frauds  embracing  pre-existing  parol  contracts  not  before 
required  to  be  in  writing  would  affect  their  validity.  A  stat- 
ute declaring  that  the  word  '  ton '  should  in  prior  as  well  as 
subsequent  contracts  be  held  to  mean  half  or  double  the  weight 
before  prescribed,  would  affect  their  construction.  A  statute 
providing  that  a  previous  contract  of  indebtment  may  be 
extinguished  by  a  process  of  bankruptcy,  would  involve  its 
discharge  ;  and  a  statute  forbidding  the  sale  of  any  of  the 
debtor's  property  under  a  judgment  upon  such  a  contract 
would  relate  to  the  remedy.  It  cannot  be  doubted,  either 
upon  principle  or  authority,  that  each  of  such  laws  passed  by  a 
State  would  impair  the  obligation  of  the  contract,  and  the 
last  mentioned  not  less  than  the  first.  Nothing  can  be  more 
material  to  the  obligation  than  the  means  of  enforcement. 
Without  the  remedy  the  contract  may,  indeed,  in  the  sense 
of  the  law  be  said  not  to  exist,  and  its  obligation  to  fall 
within  the  class  of  those  moral  and  social  duties  which  depend 
for  their  fulfilment  wholly  upon  the  will  of  the  individuaL 
The  ideas  of  validity  and  remedy  are  inseparable,  and  both 
are  parts  of  the  obligation  which  is  guaranteed  by  the  Con- 
stitution against  invasion." 

"  The  obligation  of  a  contract '  is  the  law  which  binds  the 
parties  to  perform  their  agreement.'  ^  The  prohibition  has  no 
reference  to  the  degree  of  impairment ;  the  largest  and  least 
are  alike  forbidden.  In  Green  v,  Biddle*  it  was  said:  *  The 
objection  to  a  law,  on  the  ground  of  its  impairing  the  obliga- 
tion of  a  contract,  can  never  depend  upon  the  extent  of  the 
change  which  the  law  effects  in  it.  Any  deviation  from  its 
terms,  by  postponing  or  accelerating  the  period  of  perform- 
ance which  it  prescribes,  imposing  conditions  not  expressed 
in  the  contract,  or  dispensing  with  those  which  are,  however 
minute  or  apparently  immaterial  in  their  effect  upon  the  con- 

1  4  Wallace,  535. 

2  Edwards  v.  Kearzey,  96  U.  S.  600;  Seibert  v.  Lewis,  122  Id.  284,  2&4. 
^  Sturges  V.  Crowninshield,  4  Wheaton,  122. 


IMPAIRS  THE  OBLIGATION.  679 

tract  of  the  parties,  impairs  its  obligation.  Upon  this  prin- 
ciple it  is  that  if  a  creditor  agree  with  his  debtor  to  postpone 
the  day  of  payment,  or  in  any  other  way  to  change  the  terms 
of  the  contract  without  the  consent  of  the  surety,  the  latter 
is  discharged,  although  the  change  was  for  his  advantage.' 

"  One  of  the  tests  that  a  contract  has  been  impaired^  is  that 
its  value  has  by  legislation  been  diminished.  It  is  not,  by  the 
Constitution,  to  be  impaired  at  all.  This  is  not  a  question  of 
degree  or  cause,  but  of  encroaching  in  any  respect  on  its 
obligation,  or  dispensing  with  any  part  of  its  force."  ^ 

If  the  effect  is  produced,  it  matters  not  by  what  means, 
because  the  prohibition  is  absolute,  and  equally  applicable 
whether  the  law  operates  directly  on  the  contract,  or  to  impair 
the  remedies  through  which  it  may  be  enforced,  or  the  proofs 
by  which  it  is  sustained.  A  law  declaring  that  a  pre-existing 
contract  does  not  bind  the  parties,  or  liberating  them  from 
the  obligation,  is  necessarily  unconstitutional,  and  hence,  as 
we  have  seen,  a  State  cannot  pass  a  retroactive  insolvent 
or  bankrupt  law;^  but  the  prohibition  will  also  be  violated 
by  an  enactment  which  injuriously  varies  the  interpretation 
of  the  contract,  the  duties  which  it  imposes,^  or  the  measure 
of  damages,*  or  which  renders  that  which  would  not  have 
been  a  defence  when  the  contract  was  made  an  answer  to  an 
action  brought  to  enforce  its  provisions;^  as,  for  instance,  by 
enacting  that  actions  on  bonds  or  judgments  confessed  pre- 
viously under  a  warrant  of  attorney  may  be  defeated  by  proof 
of  want  of  consideration.^ 

It  results  from  these  principles  that  the  legislature  can- 
not constitutionally  authorize  a  debtor  to  pay  the  amount  of 
a  tax  which  has  been  imposed  on  the  creditor  into  the  State 

*  Planters'  Bank  v.  Sharp,  6  Howard,  327. 

3  Sturges  V.  Crowninshield,  4  Wheaton,  122;  Ogden  v.  Saunders,  12 
Id.  213;  Von  Hoffman  v.  Quincey,  4  Wallace,  535,  552. 

«  Von  Hoffman  v.  Quincey,  4  Wallace,  535;  Edwards  v.  Kearzey, 
96  U.  S  600;  Black  on  Constitutional  Prohibitions,  sect.  102. 

*  Wilmington  R.  R.  v.  King,  91  U.  S.  3;  Effinger  v.  Kenney,  115  Id. 
566. 

6  Cornell  v.  Hickens,  11  Wis.  353;  McElvain  v.  Mudd,  44  Ala.  48. 

*  See  Williams  v.  Haines,  27  Iowa,  251. 


680  A  TAX  ON  THE  DEBT  CANNOT  BE 

treasury,  and  then  plead  it  as  an  entire  or  partial  satisfaction 
of  the  debt.  This  is  clear  where  the  creditor  is  a  non-resi- 
dent,^  and  not  less  true  when  he  is  within  the  State ;  and  the 
tax  would  be  valid  if  laid  directly  on  him.  A  law  directing 
that  the  principal  or  interest  of  a  debt  shall  be  paid  to  a  third 
person,  is  as  contrary  to  the  obligation  as  a  law  authorizing  the 
debtor  to  retain  the  money  for  his  own  use.  For  like  reasons 
a  State  or  a  municipal  corporation  cannot  assess  its  bonds  or 
loans  and  then  deduct  the  tax  from  the  sum  due  the  cred- 
itors. Such  a  tax  may  be  valid  as  regards  persons  who  re- 
side within  the  jurisdiction,  but  must  be  collected  from  the 
creditor,  and  not  deducted  by  the  debtor.^ 

In  Murray  v.  Charleston,  the  clause  providing  that  no  State 
shall  pass  a  law  impairing  the  obligation  of  contracts,  was 
said  to  be  a  limitation  on  the  taxing  power  of  the  States  as 
well  as  on  all  their  other  legislation ;  and  the  use  of  that 
power  to  vary  the  stipulations  of  a  contract,  or  relieve  the 
debtor  from  a  strict  and  literal  compliance  with  its  terms, 
was  unconstitutional  and  void.  A  city  could  not,  therefore, 
free  itself  from  the  obligation  to  pay  the  principal  and  interest 
of  its  loans  by  an  ordinance  worded  as  a  tax,  but  in  effect 
authorizing  the  deduction  of  the  amount  from  the  sum  due 
the  creditor.^ 

1  Tax  on  Foreign  Bonds,  15  Wallace,  319 ;  Hartraan  v.  Greenhow, 
102  U.  S.  672. 

2  Murray  v.  Charleston,  96  U.  S.  432;  see  ante,  p.  319. 

8  "  It  may,"  said  Strong,  J.,  "  safely  be  affirmed  that  no  State  by  virtue 
of  its  taxing  power  can  say  to  a  debtor:  '  You  need  not  pay  to  your 
creditor  all  of  what  you  have  promised  to  him.  You  may  satisfy  your 
duty  to  him  by  retaining  a  part  for  yourself,  or  for  some  municipality,  or 
for  the  State  Treasury.'  Much  less  can  a  city  say,  *  We  will  tax  our 
debt  to  you,  and  in  virtue  of  the  tax  withhold  a  part  for  our  own  use.' 
What,  then,  is  meant  by  the  doctrine  that  contracts  are  made  with  refer- 
ence to  the  taxing  power  resident  in  the  State  and  in  subordination  to 
it?  Is  it  meant  that  when  a  person  lends  money  to  a  State,  or  to  a  mu- 
nicipal division  of  the  State  having  the  power  of  taxation,  there  is  in  the 
contract  a  tacit  reservation  of  a  right  in  the  debtor  to  raise  contributions 
out  of  the  money  promised  to  be  paid  before  payment?  That  cannot  be; 
because  if  it  could,  the  contract  (in  the  language  of  Alexander  Hamilton) 
would  '  involve  two  contradictory  things,  —  an  obligation  to  do,  and  a  right 


DEDUCTED   BY  THE  DEBTOR.  681 

Agreeably  to  these  decisions,  contracts,  unlike  lands  or 
chattels,  cannot  be  taxed  irrespectively  of  the  owner's  resi- 
dence, and  whether  he  is,  or  is  not,  personally  subject  to  the 
power  of  the  government  which  lays  the  tax;  nor  can  a  State 
constitutionally  assess  the  money  which  it  has  borrowed,  and 
make  the  tax  a  pretext  for  not  paying  the  principal  and  in- 
terest in  full.     It  may  be  impracticable  to  enforce  the  rule 

not  to  do;  an  obligation  to  pay  a  certain  sum,  and  a  right  to  retain  it  in 
the  shape  of  a  tax.  It  is  against  the  rules  both  of  law  and  of  reason  to 
admit  by  implication  in  the  construction  of  a  contract  a  principle  which 
goes  in  destruction  of  it.*  The  truth  is,  States  and  cities,  when  they 
borrow  money  and  contract  to  repay  it  with  interest,  are  not  acting  as 
sovereignties.  They  come  down  to  the  level  of  ordinary  individuals. 
Their  contracts  have  the  same  meaning  as  that  of  similar  contracts  be- 
tween private  persons.  Hence,  instead  of  there  being  in  the  undertaking 
of  a  State  or  city  to  pay,  a  reservation  of  a  sovereign  right  to  withhold 
payment,  the  contract  should  be  regarded  as  an  assurance  that  such  a 
right  will  not  be  exercised.  A  promise  to  pay,  with  a  reserved  right  to 
deny  or  change  the  effect  of  the  promise,  is  an  absurdity.  Is,  then,  prop- 
erty, which  consists  in  the  promise  of  a  State,  or  of  a  municipality  of  a 
State,  beyond  the  reach  of  taxation?  We  do  not  affirm  that  it  is.  A 
State  may  undoubtedly  tax  any  of  its  creditors  within  its  jurisdiction  for 
the  debt  due  to  him,  and  regulate  the  amount  of  the  tax  by  the  rate  of 
interest  the  debt  bears,  if  its  promise  be  left  unchanged.  A  tax  thus  laid 
impairs  no  obligation  assumed.  It  leaves  the  contract  untouched.  But 
until  payment  of  the  debt  or  interest  has  been  made,  as  stipulated,  we 
think  no  act  of  State  sovereignty  can  work  an  exoneration  from  what  has 
been  promised  to  the  creditor,  —  namely,  payment  to  him,  —  without  a 
violation  of  the  Constitution.  '  The  true  rule  of  every  case  of  property 
founded  on  contract  with  the  government  is  this.  It  must  first  be  re- 
duced into  possession,  and  then  it  will  become  subject,  in  common  with 
other  similar  property,  to  the  right  of  the  government  to  raise  contribu- 
tions upon  it.  It  may  be  said  that  the  government  may  fulfil  this  princi- 
ple by  paying  the  interest  with  one  hand,  and  taking  back  the  amount  of 
the  tax  with  the  other.  But  to  this  the  answer  is,  that  to  comply  truly 
with  the  rule,  the  tax  must  be  upon  all  the  money  of  the  community,  not 
upon  the  particular  portion  of  it  which  is  paid  to  the  public  creditors, 
and  it  ought  besides  to  be  so  regulated  as  not  to  include  a  lien  of  the  tax 
upon  the  fund.  The  creditor  should  be  no  otherwise  acted  upon  than  as 
every  other  possessor  of  money;  and,  consequently,  the  money  he  receives 
from  the  public  can  then  only  be  a  fit  subject  of  taxation  when  it  is  en- 
tirely separated '  (from  the  contract)  '  and  thrown  undistinguished  into 
the  common  mass.'     3  Hamilton's  Works,  514  et  seq.'*  • 


682  AGREEMENT  TO  RECEIVE 

when  the  debtor  is  a  sovereign  and  cannot  be  sued ;  but  it  is 
valuable  as  teaching  a  lesson  of  good  faith  which  may  hinder 
governments  from  evading  their  obligations  under  the  guise 
of  taxation. 

While  a  debtor  cannot  legitimately  be  empowered  to  ap- 
propriate the  amount  due»  to  the  payment  of  the  creditor's 
debts  without  his  assent,  the  same  end  may  be  attained  indi- 
rectly through  a  judicial  proceeding  ;  and  there  is  no  constitu- 
tional objection  to  a  statute  authorizing  the  attachment  of  a 
debtor's  assets,  including  the  sums  owing  to  him,  as  a  means 
of  satisfying  the  demands  of  the  State  or  of  private  credit- 
ors. Such  a  statute  may  operate  retroactively  to  compel  the 
garnishee  to  pay  the  plaintiff  in  the  attachment  instead  of 
the  defendant,  as  was  agreed ;  but  the  decree  is  pronounced 
by  a  court  after  a  hearing  at  which  all  the  parties  may  be 
present.  Writs  of  this  kind  were  issued  under  the  custom 
of  London  at  an  early  period,  and  are  now  largely  employed 
in  the  United  States  both  as  mesne  and  final  process.  The 
right  of  set-off  is,  moreover,  generally  admitted ;  and  if  a 
government  or  municipality  may  legitimately  tax  its  bonds, 
there  seems  to  be  no  sufficient  reason  why  it  should  not  de- 
duct the  tax  in  settling  with  its  creditors.  The  point  really 
at  issue  is.  Can  such  a  tax  be  imposed  consistently  with  the 
good  faith  which  should  be  observed  by  nations  ? 

The  contracts  of  a  State  are,  as  we  have  seen,  not  less 
strongly  guarded  against  retroactive  legislation  than  those 
of  individuals ;  and  a  law  declaring  them  invalid,  or  prohibit- 
ing her  officers  or  agents  from  carrying  them  into  effect,  will 
be  invalid,  and  cannot  be  set  up  as  a  justification  for  a  failure 
to  perform  any  act  which  was  incumbent  under  the  contract 
as  originally  made.^  Hence,  when  notes  or  coupon  bonds 
issued  by  a  State  or  by  a  bank  which  she  has  organized,  are 
taken  by  individuals  on  the  faith  of  a  legislative  declaration 
that  they  shall  be  received  for  taxes,  a  law  repealing  this 
provision   and  forbidding  the  collector  to  comply  with  its 

1  New  Jersey  v.  Wilson,  7  Cranch,  164;  Wolff  v.  New  Orleans,  103 
U.  S.  358;  Keith  v.  Clark,  97  Id.  454;  Poindexter  v.  Greenhow,  114  Id. 
270;  Hartman  v.  Greeuhow,  102  Id.  672.     See  ante,  p.  586. 


COUPONS  IN  PAYMENT   OF  TAXES.  683 

terms  will  be  simply  void,^  and  an  officer  who  refuses  to  re- 
ceive such  notes  or  coupons  when  duly  tendered  by  a  tax- 
payer, and  proceeds  to  collect  the  amount  by  distress,  may 
be  enjoined,  or  an  action  brought  to  recover  back  the  goods.^ 
Such  a  suit  is  not  against  the  State,  or  within  the  scope  of 
the  Eleventh  Amendment,  because  the  States,  the  President 
of  the  United  States,  and  Congress,  are  in  contemplation  of 
law  as  incapable  of  giving  an  unconstitutional  order  as  was 
the  king,  and  such  a  mandate  will  no  more  protect  those 
who  act  under  it  than  would  a  writ  which  exceeded  the  juris- 
diction of  the  court.^  So  also  where  the  laws  of  the  State 
require  an  attorney  to  purchase  a  license  before  entering  on 
the  practice  of  the  law,  the  license  fee  is  a  tax,  and  the 
tender  of  such  coupons  as  those  above  described  will  be 
equivalent  to  payment.*  And  if  the  attorney  is  subsequently 
convicted  for  practising  without  a  license,  the  record  may  be 
removed  to  the  Supreme  Court  of  the  United  States  and  the 
judgment  reversed.^ 

In  the  Planters'  Bank  v.  Sharpe  an  act  forbidding  any 
banks  within  the  State  to  "  indorse  or  otherwise  transfer  any 
note,  bill  receivable,  or  other  evidence  of  debt,"  was  held 
invalid  as  regarded  an  existing  bank  which  was  expressly 
authorized  by  its  charter  *'  to  have,  possess,  and  enjoy  lands, 
tenements,  hereditaments,  goods,  chattels,  and  effects  of  what 
kind  soever,"  and  "  the  same  to  grant,  demise,  alien,  or  dis- 
pose of,"  and  also  *'  to  discount  all  bills  of  exchange  and 
notes."  The  court  held  that  the  jus  disponendi  was  an  in- 
cident of  property  which  could  not  be  taken  away  without 
diminishing  its  value,  and  consequently  impairing  the  obliga- 
tion of  the  contract  which  conferred  the  right. 

The  prohibition  is  not  less  applicable  where  the  injury  is 

1  Woodruff  V.  Trapnall,  10  Howard,  190,  208. 

2  Poindexter  v.  Greenhow,  114  U.  S.  270;  Antoni  v.  Greenhow,  107 
Id.  769 ;  Clarke  v.  Tyler,  30  Grattan,  134. 

8  The  United  States  ».  Lee,  106  U.  S.  196 ;  Poindexter  v.  Greenhow, 
114  Id.  270,  290.     See  1  Smith's  Leading  Cases  (8  Am.  ed.). 
*  Woodruff  V.  Trapnall,  10  Howard,  190,  208. 
6  Royall  V.  Virginia,  116  U.  S.  572. 

VOL.   II.  —  3 


684  EXCLUSIVE  RIGHT  TO  CONSTRUCT 

incidental,  arising  from  a  second  grant  which  conflicts  with 
the  first ;  and  a  stipulation  in  the  charter  of  a  bridge  or  rail- 
way company  that  no  road  or  structure  of  a  like  kind  shall 
be  built  between  the  same  points  or  within  a  certain  distance 
on  either  side,  is  valid,  and  will  preclude  the  right  to  grant 
another  franchise  which  will  impair  the  value  of  the  first.^ 

In  the  case  last  cited,  a  bridge  was  built  at  Binghamton 
across  the  Chenango  River  under  a  charter  from  the  legisla- 
ture of  New  York  which  provided  that  the  company  should 
have  all  the  rights,  privileges,  and  advantages  conferred  in 
the  charter  of  the  Delaware  Bridge  Co.  and  that  "  all  the 
provisions,  sections,  and  clauses  of  said  charter  should  be 
extended  to  the  charter  of  the  Binghamton  Bridge,  if  not 
inconsistent  therewith."  Among  these  clauses  was  one  pro- 
viding that  no  bridge  should  be  erected  within  two  miles  on 
either  side.  Binghamton  was  then  an  inconsiderable  village  ; 
but  it  subsequently  became  a  large  and  thriving  town,  and  a 
single  bridge  was  inadequate  to  the  wants  of  the  inhabitants. 
The  legislature  of  New  York  accordingly  authorized  the 
construction  of  a  second  bridge  near  the  first,  to  meet  the 
need.  When  the  question  came  before  the  Supreme  Court  of 
the  United  States  on  a  writ  of  error,  that  tribunal  held  that 
the  Binghamton  Bridge  Co.  had  all  the  rights  of  the  Dela-. 
ware  Bridge  Co.,  and  among  them  that  of  insisting  that  no 
other  bridge  should  be  built  within  two  miles  of  their  own. 
So  the  grant  of  an  exclusive  right  to  supply  gas  to  a  city 
and  its  inhabitants  through  pipes  and  mains  laid  in  the  public 
streets  is  a  contract  which  binds  the  municipality,  and  will  be 
impaired  by  the  grant  of  a  like  right  to  another  company  dur- 
ing the  period  fixed  for  the  continuance  of  the  first ;2  and  such 
also  is  the  rule  as  to  a  franchise  for  the  supply  of  water.^ 

1  See  The  Boston  &  Lowell  R.  R.  v.  The  Salem  &  Lowell  R.  R., 
2  Gray,  1;  East  Hartford  v.  The  Hartford  Bridge  Co.,  17  Conn.  78; 
iS^ew  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650,  662  ;  The 
Charles  River  Bridge  v.  The  Warren  Bridge,  11  Peters,  420;  The  Rich- 
mond R.  R.  V.  The  Louisa  R.  R.,  13  Howard,  71;  The  Binghamton 
Bridge  Case,  3  Wallace,  51. 

2  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650. 

»  New  Orleans  Water  Works  v.  Rivers,  115  U.  S.  674;  antCy  p.  607. 


A  BRIDGE  OR  RAILWAY.  685 

The  inconvenience  of  such  a  course  of  decision  is  obvious, 
and  would  be  intolerable,  but  that,  as  I  have  elsewhere 
stated,  the  franchises  granted  by  a  State  are,  like  all  other 
property,  subject  to  the  right  of  eminent  domain,  and  may 
be  resumed  by  the  legislature  on  the  payment  of  an  ade- 
quate compensation.^  In  these  instances  the  grant  was  ex- 
clusive in  terms ;  and  when  such  is  not  the  case,  conferring 
a  chartered  right  or  privilege  will  not  preclude  the  legisla- 
ture from  making  a  like  grant  to  another  company,  although 
it  materially  lessens  the  value  of  the  first.  The  rule  in  such 
cases  is  the  converse  of  that  which  prevails  between  indi- 
viduals, where  in  a  doubtful  case  that  interpretation  will  be 
adopted  which  is  most  favorable  to  the  grantee. 

A  law  imposing  a  duty  on  either  party  to  a  contract  that 
does  not  arise  from  its  terms,  may  be  an  arbitrary  deprivation  ; 
but  if  it  does  no  more,  will  not  impair  the  obligation  of  the 
other  party  to  him.  The  case  is  obviousl}'  different  where  the 
statute  makes  requirements  which  are  conditions  precedent, 
and  must  be  fulfilled  before  the  opposite  party  can  be  com- 
pelled to  do  as  he  agreed.  Tlie  obligation  of  a  mutual  or 
bilateral  contract  will  consequently  be  impaired  by  so  increas- 
ing the  obligation  of  either  party  as  to  lessen  the  debt  due 
to  him  or  hinder  him  from  enforcing  it  by  suit.  A  tenant  is 
entitled  to  quiet  enjoyment  during  the  term,  and  the  land- 
lord to  possession  when  it  ends  ;  and  a  law  making  either 
right  dependent  on  the  performance  of  an  act  not  enumerated 
in  the  lease  —  as,  for  instance,  that  the  tenant  shall  pay  the 
taxes,  or  the  landlord  make  compensation  for  improvements  — 
will  be  invalid.  Parliament,  as  the  recent  course  of  English 
legislation  indicates,  may  so  deal  with  contracts ;  but  no  such 
power  resides  in  Congress  or  the  legislatures  of  the  several 
States.2  Such  also  would  be  the  effect  of  a  law  authorizing 
a  vendor  to  deliver  less  than  the  contract  calls  for,  or  requir- 
ing the  purchaser  to  pay  more  in  order  to  entitle  him  to  a 

1  See  West  River  Bridge  Co.  v.  Dix,  6  Howard,  507;  Richmond  R.  R. 
V.  Louisa  R.  R.,  13  Id.  71;  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co., 
115  U.  S   650,  673.     See  ante,  p.  608, 

2  Palairet's  Appeal,  67  Pa.  493;  The  Sinking  Fund  Cases,  99  U.  S.  700. 


686  A  STATE  CANNOT  IMPAIR  CONTRACTS 

conveyance ;  and  an  enactment  that  a  failure  of  title  shall 
be  a  defence  to  an  action  brought  for  the  purchase-money 
of  land,  in  the  absence  of  a  warranty  or  covenant  of  seisui, 
would  fall  in  the  same  category. 

Whatever  the  rule  may  be  in  other  instances,  where,  as  in 
the  case  of  a  charter,  the  State  is  a  party  to  the  contract,  it 
cannot  impose  any  terms  or  conditions  not  contained  in  the 
grant.  A  stipulation  that  an  incorporated  company  shall  do 
so  much,  implies  that  they  shall  not  be  called  on  for  more;  and 
if  more  is  required,  the  obligation  will  be  impaired,  because  the 
presumption  is  that  the  charter  was  accepted  in  the  belief  that 
its  terms  would  be  observed.^  It  is  equally  clear  that  a  State 
cannot  evade  the  constitutional  prohibition  by  declaring  a  valid 
contract  void  for  a  want  of  form  or  substance,  or  as  having 
been  made  for  an  illegal  end  ;  and  such  legislation  will  simply 
leave  the  obligation  where  it  was  before  the  passage  of  the 
statute.2  The  question  is  not  necessarily  concluded  by  a 
decision  of  the  highest  State  tribunal  that  the  contract  was 
invalid  from  the  outset,  because  the  duty  of  the  Supreme 
Court  of  the  United  States  to  see  that  the  obligation  of 
contracts  is  not  impaired,  involves  the  right  to  determine 
whether  the  contract  was  obligatory  under  the  pre-existing 
law.^  Although  the  federal  tribunals  are  also  courts  of  the 
several  States  and  should  administer  justice  according  to  the 
laws  of  each  State  as  construed  by  its  courts  of  last  resort, 
wherever  the  operation  of  the  Constitution  of  the  United 
States,  of  treaties,  or  of  acts  of  Congress  is  not  involved, 
yet  in  this  last  class  of  cases  the  Supreme  Court  of  the 
United  States  is  the  arbiter  by  whose  opinion  the  judgments 
of  the  highest  courts  of  the  respective  States  must  stand 
or  fall.*    It  was  on  this  ground  that  the  Supreme  Court  of 

1  The  Planters'  Bank  v.  Sharp,  6  Howard,  301. 

2  Keith  V.  Clark,  97  U.  S.  454. 
8  See  ante,  p.  503. 

*  Knoup  V.  The  Piqua  Bank,  1  Ohio,  n.  s.  603 ;  The  Jefferson  Bank 
V.  Skelly,  1  Black,  436;  The  Northwestern  University  v.  People,  99  U.  S. 
309;  Delmas  v.  The  Insurance  Co.,  14  Wallace,  661;  Keith  v.  Clark,  97 
U.  S.  454;  The  Commonwealth  v.  The  Pittsburgh  R.  R.  Co.,  8  P.  F.  Smith, 
26,  44. 


BY  DECLARING  THEM  VOID.  687 

the  United  States  held  that  laws  exempting  the  property  of 
an  incorporated  company  or  an  individual  from  taxation  might 
operate  as  contracts,  contrary  to  the  opinion  of  the  State  tri- 
bunals that  a  legislature  cannot  bind  its  successors  or  part 
with  any  sovereign  power  which  has  been  conferred  for  public 
ends.  So  contracts  made  payable  in  or  in  consideration  of 
the  paper  currency  of  the  Confederacy  have  been  sustained 
by  the  same  tribunal,  although  the  highest  court  of  the  State 
had  declared  them  void  as  contrary  to  public  policy  and  in 
obedience  to  the  popular  will  as  signified  by  a  convention.^ 

When,  therefore,  a  contract  is  declared  void  by  a  State  leg- 
islature or  constitutional  convention,  and  the  State  court  sub- 
sequently sets  it  aside  on  the  ground  that  it  is  contrary  to 
public  policy  and  was  never  valid,  the  Supreme  Court  of  the 
United  States  will  consider  the  case  in  both  aspects  and  re- 
verse the  judgment  if  in  their  opinion  the  alleged  defect  does 
not  exist,  although  they  might  have  been  bound  by  the  de- 
cision of  the  State  court  had  not  the  passage  of  the  law 
enlarged  their  jurisdiction.^ 

In  Keith  v.  Clark,  the  State  of  Tennessee  had  agreed  in 
chartering  the  Bank  of  Tennessee  to  receive  all  its  issues  of 
circulating  notes  in  payment  of  taxes ;  and  a  subsequent 
Constitutional  amendment  declaring  the  issues  of  the  bank 
during  the  civil  war  invalid,  and  forbidding  their  receipt 
for  taxes,  was  held  to  conflict  with  the  Constitution  of  the 
United  States. 

A  statute  varying  a  grant  or  charter,  or  taking  away  any 
right  which  it  confers,  cannot  be  defended  on  the  ground  that 
the  infringement  is  slight  and  does  not  injuriously  affect  the 
contract.  The  question  in  such  cases  is  not  one  of  degree, 
but  whether  the  obligation  is  so  varied  as  to  alter  the  rela- 
tions of  the  parties,  or  preclude  a  right  that  might  have  been 
enforced  but  for  the  change.^    A  covenantee  is  entitled  to  the 

^  Louisiana  v.  Pilsbury,  105  U.  S.  27;  see  Keith  v.  Clark,  97  Id.  454. 

a  Keith  V.  Clark.  97  tf.  S.  454. 

*  See  Green  v.  Biddle,  8  Wheaton,  84;  Von  Hoffman  v.  Quincy,  4  Wal- 
lace, 552;  Edwards  v.  Kearzey,  96  U.  S.  600;  Palairet's  Appeal,  67  Pa. 
479,  493. 


688  SUBSTITUTION   OF   A  DIFFERENT  THING. 

very  thing  for  which  he  stipulated,  and  the  legislature  cannot 
substitute  a  different  thing,  although  of  greater  value.^ 

In  Palairet's  Appeal  an  act  providing  for  the  extinguish- 
ment of  irredeemable  ground-rents  on  the  payment  of  a  sum 
fixed  by  a  jury  called  to  estimate  the  value,  but  which  was  not 
in  any  case  to  be  computed  at  less  than  twenty  years'  purchase, 
was  held  to  be  at  variance  with  the  organic  laws  of  the  State 
and  of  the  General  Government.  "  Here,"  said  Sharswood, 
J.,  *'is  a  perpetual  covenant,  personal  as  to  the  original  cov- 
enantor, but  running  with  the  land,  to  pay  an  annual  rent 
issuing  out  of  it ;  and  the  act  provides  for  the  release  of  one 
of  the  parties  from  the  performance  of  his  contract  upon  the 
doing  of  a  collateral  act  not  stipulated  in  the  contract  itself. 
No  one  has  ever  contended  that  an  act  of  assembly  could  au- 
thorize one  of  the  parties  to  a  lawful  pre-existing  contract  to 
tender  a  collateral  thing  in  satisfaction  or  extinguishment, 
whatever  the  value  of  that  thing  might  be  as  compared  with 
the  damage  occasioned  by  the  breach.  Yet  in  effect  that  is 
just  what  is  done  by  this  act.  The  covenant  is  to  pay  an 
annual  sum  or  rent  forever ;  a  jury  are  authorized  to  say  what 
principal  sum  shall  be  a  satisfaction  and  extinguishment  of 
that  covenant, — a  collateral  thing  not  provided  for  in  the  con- 
tract, and  which  might  as  well  be  anything  else  as  money." 

1  See  The  Planters'  Bank  v.  Sharp,  6  Howard,  301,  307;  Palairet's 
Appeal,  67  Pa.  479. 


LECTURE  XXXI. 

The  Legislature  may  change  or  regulate  the  Procedure  as  they  think 
proper,  unless  the  Change  injuriously  hinders  the  Creditor.  —  A  Par- 
ticular Means  of  Redress  may  be  taken  away  if  an  Adequate  Remedy 
remains  or  is  substituted.  —  Laws  giving  an  Unreasonable  Stay  of 
Execution  or  Exemption  are  Unconstitutional.  —  What  is  reasonable 
in  View  of  the  Circumstances  is  primarily  for  the  Legislature,  but  their 
Decision  may  be  overruled  if  manifestly  Erroneous.  —  The  Right  of 
Distress  may  be  abolished,  though  stipulated  for  in  the  Lease.  —  Is  an 
Agreement  not  to  take  Advantage  of  an  Actual  or  Prospective  Stay  or 
Exemption  obligatory  ?  —  Retroactive  Stay  and  Exemption  Laws  de- 
pend on  the  Police  Power,  which  is  ordinarily  paramount.  —  Substitu- 
tion of  an  Inferior  though  reasonably  Efficient  Remedy.  —  Legislation 
should  not  be  held  unconstitutional  if  the  Case  admits  of  a  Reasonable 
Doubt.  —  Rule  where  the  Question  arises  under  a  Prohibitory  Clause. 
—  Denying  or  injuriously  restricting  the  Means  of  Proof  impairs  the 
Obligation.  —  The  Legislature  may  retroactively  abridge  the  Period 
for  bringing  Suit  if  a  Reasonable  Time  is  left. 

In  the  cases  hitherto  considered,  the  obligation  was  impaired 
hy  varying  the  mode  or  time  of  performance,  or  withholding 
something  which  the  contractor  had  agreed  to  give.  But  the 
Constitution  may  equally  be  violated  by  a  statute  which, 
without  affecting  the  right,  suspends  or  abrogates  the  remedy 
for  the  breach.  If,  for  instance,  the  law  were,  instead  ot 
postponing  the  time  of  payment  for  a  week,  to  declare  that 
no  action  should  be  brought  until  a  week  after  the  debt  had 
become  due,  the  injury  to  the  creditor  would  be  the  same, 
although  inflicted  in  a  somewhat  different  way.  Payment 
would  still  be  legally  demandable  at  the  time  originally  fixed, 
and  might,  if  the  question  arose  in  another  jurisdiction,  be 
compelled ;  but  as.  there  would  be  no  means  of  enforcing  it  in 
the  place  where  the  contract  was  made,  the  object  which  the 
Constitution  had  in  view  would  be  frustrated.  And  this 
would  seem  to  be  true  irrespectively  of  the   time   during 


690  IMPAIEING  THE  KEMEDY 

which  the  delay  endures.  To  impair  is  to  diminish,  to  make 
less,  to  deteriorate ;  and  a  contract  is  necessarily  impaired 
when  anything  is  subtracted  from  the  sum  of  the  duties 
which  it  imposes  or  the  rights  which  it  confers. 

If  it  be.  conceded  that  the  suspension  of  the  right  to  pro- 
ceed by  suit  to  judgment  is  unconstitutional,  it  would  seem 
to  follow  that  a  postponement  of  the  period  at  which  the 
judgment  may  be  enforced  by  execution  will  also  be  contrary 
to  the  Constitution.  In  neither  case  does  the  law  act  directly 
on  the  contract  to  vary  the  time  or  manner  of  performance 
and  there  is  a  delay  in  both  which  may  be  equivalent  to  a 
denial  of  justice  by  affording  the  debtor  an  opportunity  to 
place  his  property  beyond  the  reach  of  his  creditors.^ 

It  is  accordingly  established  that  an  act  suspending  the 
creditor's  right  to  proceed  to  execution,  or  clogging  it  with 
restrictions  which  render  it  less  efficient,  may  be  equally  invalid 
with  an  act  postponing  the  period  for  the  payment  of  the  debt. 
The  question  arose  in  Bronson  v.  Kinzie  ^  on  a  bill  filed  for 
the  foreclosure  of  a  mortgage  which  contained  a  stipulation 
that  the  mortgagee  might  enter  for  default  of  payment  and 
dispose  of  the  premises  at  public  sale.  The  defendant  relied, 
on  a  statute  of  Illinois  providing  that  no  sale  should  be  made 
compulsorily  on  process  unless  the  property  brought  two 
thirds  of  its  value  as  estimated  by  appraisers  to  be  appointed 
by  the  court,  and  that  the  mortgagor  should  have  a  year  in 
which  to  redeem,  on  repaying  the  purchase-money  with 
interest  at  ten  per  cent. 

Chief- Justice  Taney  said,  in  delivering  judgment,  that 
agreeably  to  the  law  existing  when  the  mortgage  was  ex- 
ecuted, the  equity  of  the  mortgagor  might  be  absolutely 
precluded  by  a  decree  of  foreclosure.     If  the  law,  though 

1  Edwards  v.  Kearzey,  96  U.  S.  661,  664;  Danks  r.  Quackenbush,  1 
N.  Y.  129;  Johnson  v.  Higgins,  3  Metcalf  (Ky.),  567 ;  Wood  v.  Wood,  13 
Richardson,  408;  Johnson  v.  Duncan,  3  Martin  (La.),  530;  Webster  u. 
Rose,  6  Heiskell,  93,  102;  Jacobs  v.  Smallwood,  63  N.  C.  112;  Hudspath 
».  Davis,  41  Ala.  389;  Lester  v.  Hunter,  30  Texas,  688;  Taylor  c.  Stearns, 
18  Grattan,  242,  288. 

2  1  Howard,  317. 


IMPAIRS  THE  CONTBACT.  691 

subsequent,  had  simply  changed  the  remedy,  it  would  be 
liable  to  no  constitutional  objection.  A  State  might  clearly 
regulate  at  pleasure  the  mode  of  procedure  in  reference  to 
past  contracts  as  well  as  future.  It  might,  for  example, 
shorten  the  period  within  which  claims  would  be  barred  by 
the  statute  of  limitations ;  it  might  even  direct  that  necessary 
implements  of  agriculture,  the  tools  of  the  mechanic,  or  ar- 
ticles which,  like  wearing  apparel  and  household  furniture, 
are  needful  for  the  daily  wants  of  life,  should  be  exempt 
from  levy  and  sale  for  debt. 

New  remedies  might  be  substituted,  and  if  these  were  less 
convenient,  or  rendered  the  recovery  more  tardy  or  difficult, 
it  did  not  follow  that  the  law  was  unconstitutional.  What- 
ever belonged  merely  to  the  remedy  might  be  altered  at  the 
will  of  the  State,  provided  the  obligation  of  the  contract 
was  not  impaired.  If  that  effect  was  produced,  it  was  imma- 
terial whether  it  resulted  from  a  law  acting  on  the  remedy,  or 
directly  on  the  contract.  In  either  case  it  was  prohibited  by 
the  Constitution.  As  the  law  stood  when  the  contract  before 
the  court  was  made,  the  mortgagee  was  entitled  on  default  to 
obtain  an  order  for  the  sale  of  the  mortgaged  property  free 
and  discharged  from  the  equitable  interest  of  the  mortgagor. 
This  was  the  obligation  of  the  contract,  and  any  subsequent 
law  impairing  the  right  which  it  conferred  was  necessarily 
invalid. 

The  question  presented  by  the  second  point  was  equally 
clear.  Though  the  statute  apparently  acted  upon  the  rem- 
edy, and  not  directly  upon  the  contract,  its  effect  was  to 
deprive  the  complainant  of  his  pre-existing  right  to  foreclose 
the  mortgage  by  a  sale  of  the  premises,  and  to  impose  condi- 
tions that  would  render  any  sale  impracticable.  The  uncon- 
stitutionality was  the  more  glaring  because  the  mortgage 
contained  a  covenant  authorizing  the  mortgagee,  in  default 
of  payment,  to  sell  the  premises  at  public  auction  for  the 
payment  of  the  debt,  which  was  rendered  nugatory  by  the 
law.  Mortgages  made  after  the  passage  of  the  law  might  be 
regulated  by  it,  because  a  State  had  the  power  to  prescribe 
the  equitable  and  legal  effect  of  contracts  thereafter  made 


692  INDEFINITE  STAY 

within  its  jurisdiction.  It  might  exempt  any  property  it 
saw  proper  from  sale  for  the  payment  of  debts  ;  it  might 
impose  such  conditions  and  restrictions  on  the  creditor  as 
the  judgment  and  policy  of  the  legislature  dictated.  All 
future  contracts  would  be  subject  to  the  conditions  so  im- 
posed, and  they  would  be  obligatory  on  the  parties  in  the 
courts  of  the  United  States  as  well  as  in  those  of  the  State. 
But  antecedent  contracts  could  not  be  impaired  by  retro- 
active legislation  consistently  with  the  Constitution  of  the 
United  States. 

Laws  authorizing  the  debtor  to  redeem  after  a  judicial  sale 
were  in  like  manner  held  invalid  in  Scobey  v.  Gibson  ^  and 
Iglehart  v,  Wolfin.^ 

In  the  subsequent  case  of  McCracken  v.  Hayward,^  the 
controversy  arose  under  a  retroactive  enactment  that  prop- 
erty should  not  be  sold  on  execution  for  less  than  two  thirds 
of  its  appraised  value.  The  court  held  that  the  obligation  of 
a  contract  consisted  in  its  binding  force  on  the  party  who 
made  it.  This  depended  on  the  laws  existing  when  it  was 
made.  They  were  the  measure  of  the  obligation  incurred  by 
one  party  and  of  the  right  acquired  by  the  other.  A  subse- 
quent law  affecting  to  diminish  the  duty  or  impair  the  right 
bore  on  the  obligation,  and  any  law  which  in  its  operation 
amounted  to  a  denial  or  obstruction  of  the  right,  though  pro- 
fessing to  act  only  on  the  remedy,  was  obnoxious  to  the  pro- 
hibition of  the  Constitution.  The  obligation  of  the  defendant 
in  the  case  before  the  court  was  to  perform  the  agreement ; 
and  if  he  made  default,  the  plaintiff  was  entitled  to  bring  suit 
and  obtain  damages  for  the  breach  and  proceed  by  execution 
until  the  judgment  was  satisfied  in  accordance  with  the  then 
existing  law.  This  right  was  in  every  respect  binding  on  the 
defendant,  and  as  much  a  part  of  the  contract  as  if  it  had 
been  set  forth  in  terms.  Any  law  which  denied  or  obstructed 
the  right  by  superadding  a  condition  that  the  mortgaged 
premises  should  not  be  sold  for  less  than  their  value  as  ascer- 
tained by  appraisement  or  by  any  other  method  than  a  public 
sale,  impaired  the  obligation  of  the  contract  because  it  could 

1  17  Iiid.  572.  2  20  Ind.  32.  »  2  Howard,  608. 


OF  EXECUTION   UNCONSTITUTIONAL.  693 

only  be  enforced  by  a  sale,  and  the  prevention  of  such  a  sale 
was  a  denial  of  justice. 

In  Bunn  v.  Gorgas,^  a  like  view  was  taken  by  the  Supreme 
Court  of  Pennsylvania.  "  It  was  idle  to  say  that  the  law 
under  consideration  was  merely  a  modification  of  the  remedy. 
A  law  modifying  the  remedy  might  impair  the  obligation  of 
the  contract.  The  obligation  of  a  contract,  in  the  sense  in 
which  the  word  was  used  in  the  Constitution,  is  that  duty  of 
performing  it  which  is  recognized  and  enforced  by  the  law ; 
and  if  the  law  is  so  changed  that  the  means  of  legally  enforc- 
ing the  duty  are  materially  impaired,  the  obligation  of  the 
contract  is  no  longer  the  same." 

It  results  from  these  decisions  that  where  the  creditor  is 
by  the  existing  law  entitled  to  proceed  forthwith  to  an  abso- 
lute sale,  the  legislature  cannot  impair  this  right  retroactively 
by  providing  that  the  debtor  shall  be  entitled  to  redeem  from 
the  purchaser,  or  that  no  bid  shall  be  accepted  which  does 
not  bear  a  certain  proportion  to  the  value  as  fixed  by  an 
appraisement. 

It  is  not  less  clear  in  principle,  and  from  the  language  held 
in  McCracken  v.  Hey  ward,  that  whether  the  legislature  post- 
pones the  period  for  performance,  or  the  period  at  which  per- 
formance can  be  enforced,  the  obligation  is  equally  impaired, 
because  a  judgment  without  the  right  to  proceed  to  execution 
is  futile,  and  the  material  question  as  regards  the  creditor  is 
not  when  the  debt  matures,  but  when  can  the  debtor  be 
obliged  to  pay.  In  Hasbrouck  v.  Shipman,^  a  statute  ex- 
empting all  persons  who  should  enter  the  service  of  the 
United  States  from  process  until  they  were  discharged  was 
accordingly  held  to  transgress  the  constitutional  prohibition. 

The  right  of  the  legislature  to  make  such  reasonable  regu- 
lations as  do  not  injuriously  hinder  or  delay  the  creditor  was 
conceded  in  Bronson  v.  McKenzie,  and  has  been  repeatedly 
upheld  by  the  State  tribunals  ;  but  while  there  is  no  doubt  as 
to  the  existence  of  the  right,  it  is  not  easy  to  define  its  ex- 
tent, or  the  circumstances  which  admits  of  its  exercise.  In 
Chadwick  v.  Moore  ^  the  distinction  was  declared  to  be  be- 

1  5  Wright,  441.  2  ig  ;vis.  296.  «  8  W.  &  S.  49. 


694  EEASONABLE  STAY 

tween  a  stay  of  execution  for  a  definite  period,  which  might 
be  valid  if  the  delay  was  not  unreasonable,  and  an  indefinite 
suspension,  which  was  equivalent  to  a  denial  of  remedy.  An 
enactment,  that  if  the  land  did  not  bring  two  thirds  of  its 
value  when  offered  for  sale,  all  proceedings  should  be  stayed 
for  a  year,  was  accordingly  held  not  to  impair  the  obligation 
of  the  contract.  "  The  Supreme  Court  of  the  United  States 
had  not  defined  the  rule  relatively  to  such  questions,  except 
by  declaring  that  no  law  could  be  valid  which  materially  im- 
paired the  rights  and  interests  of  the  creditor."  Assuming 
this  to  be  the  criterion,  the  court  inclined  to  the  opinion  that 
the  act  was  valid. 

While  the  right  to  regulate  the  administration  of  justice 
was  reserved  to  and  resides  in  the  States,  it  must  be  exercised 
in  subordination  to  the  higher  and  organic  law ;  and  a  statute 
which  even  for  grave  and  well-considered  reasons  —  such  as  a 
financial  crisis  or  the  existence  of  a  civil  war  —  unduly  fetters 
or  delays  the  creditor  will  be  invalid  as  regards  antecedent 
contracts.  It  may  seem  reasonable  that  the  effects  of  a  trader 
should  not  be  sacrificed  by  a  forced  sale  at  a  period  when 
they  will  not  bring  half  their  intrinsic  value,  or  that  men  who 
enlist  for  the  defence  of  their  country  should  not  be  served 
with  process  while  they  are  in  the  field ;  but  it  is  not  the  bond, 
and  successive  conventions  have  shown  by  their  votes  during 
the  last  hundred  years  that  in  the  opinion  of  the  people 
whom  they  represent  such  a  legislative  discretion  cannot  be 
accorded  without  liability  to  abuse.^  In  Bunn  v.  Gorgas,^  al- 
ready cited,  the  stress  of  the  Rebellion  was  held  not  to  vary 
the  rule  or  authorize  an  enactment  that  when  two  thirds  in 
number  and  value  of  an  insolvent's  creditors  filed  an  affidavit 
extending  the  time  for  the  payment  of  the  amounts  due  to 
them  respectively,  an  order  should  be  made  of  record  that  no 
execution  should  issue  at  the  suit  of  any  creditor  until  the 
stay  expired.  "  The  vice  of  the  statute  was  that  it  deprived 
the  creditor  of  his  remedy,  not  for  any  term  fixed  by  the 
legislature  or  the  courts,  but  as  long  as  a  majority  of  the 

1  See  Edwards  ».  Kearzey,  96  U.  S.  601,  604. 

2  5  Wright,  441. 


MAY  BE  VALID.  695 

creditors  thought  fit  to  withhold  the  remedy.  Their  decree, 
once  recorded,  bound  the  judgment-creditor,  although  the 
debtor  paid  off  the  creditors  who  made  the  decree.  There 
could  be  no  doubt  that  such  legislation  materially  impaired 
the  obligation  of  the  contract,  and  was  a  plain  disregard  of 
the  provisions  of  the  Federal  and  State  Constitutions,  which 
guard  the  inviolability  of  contracts." 

In  Breitenbach  v.  Bush,^  a  law  made  in  the  same  year  and 
presenting  a  like  question  was  held  to  fall  on  the  other  side  of 
the  line.  The  language  was  as  follows :  "  No  civil  process  shall 
issue  or  be  enforced  against  any  person  mustered  into  the 
service  of  this  State  or  the  United  States  during  the  term  for 
which  he  shall  be  engaged  in  such  service,  nor  until  thirty 
days  after  he  shall  have  been  discharged  therefrom  ;  provided 
that  the  operation  of  all  statutes  of  limitation  shall  be  suspended 
upon  all  claims  against  such  persons  during  such  term."  The 
court  held  that  as  the  delay  was  limited  to  the  term  of  ser- 
vice, and  could  not  exceed  three  years,  it  was  not  within  the 
rule  laid  down  in  Bunn  v.  Gorgas.  A  stay  for  a  reasonable 
time  was  constitutional,  although  an  indefinite  stay  was  not ; 
and  in  determining  what  length  of  time  was  reasonable,  due 
regard  might  be  had  to  circumstances  which  concerned  the 
community  as  a  whole,^  and  some  indulgence  shown  to  men 
who,  during  invasion  or  insurrection,  left  their  homes  and 
business  for  the  defence  of  their  country  and  in  obedience 
to  her  command.  Such  questions  were  in  the  first  instance 
for  the  legislature ;  but  their  determination  would  be  recon- 
sidered and  set  aside  by  the  judiciary  if  plainly  contrary  to 
the  constitutional  injunction  that  the  obligation  of  contracts 
shall  not  be  impaired.  A  like  decision  was  made  in  McCor- 
mack  V.  Rush ;  ^  but  both  may  be  thought  to  stand  on  higher 
ground  as  regards  patriotism  and  humanity  than  constitu- 
tional law.* 

If  the  effect  is  produced,  it  matters  not  by  what  means ; 

1  8  Wright,  313. 

2  See  Terry  v.  Anderson,  95  U.  S.  632. 
2  3  Am.  Law  Register,  n.  8.  91. 

*  Edwards  v.  Kearzey,  96  U.  S.  600,  604. 


696  A  REMEDY  MAY  BE  REPEALED 

and  a  law  closing  the  courts  for  an  unreasonable  period,  or 
forbidding  them  to  proceed  to  judgment,  is  invalid  whenever 
it  frustrates  a  constitutional  prohibition  by  taking  away  the 
only  means  by  which  it  can  be  enforced.^  All  the  authorities 
agree  that  when  the  obligation  of  the  grant  or  contract  is  in 
fact  impaired,  the  objection  cannot  be  met  by  saying  that  the 
statute  which  works  the  wrong  is  a  regulation  of  the  remedy 
and  does  not  touch  the  right.  The  right  and  the  remedy 
are  so  far  inseparable  that  any  legislation  which  impairs  the 
one  must  necessarily  be  prejudicial  to  the  other.  Laws 
which  so  change  the  nature  and  operation  of  existing  reme- 
dies as  materially  to  hinder  or  postpone  the  right  are  therefore 
as  much  a  violation  of  the  Constitution  as  if  the  right  itself 
were  denied.^  Hence  when  there  is  but  one  remedy,  or  only 
one  that  is  efficient,  it  cannot  be  abrogated  without  substi- 
tuting another  which  v/ill  adequately  protect  the  creditor. 

Agreeably  to  the  law  of  Pennsylvania  as  it  stood  in  1850, 
the  track  or  franchises  of  a  railroad  or  canal  company  could 
not  be  taken  in  execution  and  sold  for  the  payment  of  its 
debts,  and  the  sole  means  of  compelling  payment  was  a  se- 
questration ;  and  an  enactment  that  such  a  writ  should  not 
issue  unless  the  court  was  satisfied  that  the  corporation 
had  been  guilty  of  mismanagement  or  neglect,  was  held  to 
impair  the  obligation  of  antecedent  contracts  by  clogging  the 
only  remedy  by  which  it  could  effectually  be  enforced.^  So 
when  a  municipality  is  authorized  by  statute  to  issue  bonds 
and  provide  the  means  of  payment  by  taxation,  one  who 
lends  money  on  the  faith  of  the  existing  laws  may  compel  the 
corporation  to  levy  the  requisite  amount  although  the  statute 
has  been  repealed,  or,  what  comes  to  the  same  thing,  annulled 
retroactively  by  a  judicial  decision.* 

'  Johnson  v.  Higgins,  3  Metcalf  (Ky.),  567;  Wood  v.  Wood,  14  Rich- 
ardson, 148;  Coffman  v.  The  Bank,  40  Miss.  29 ;  Hill  v.  Boyland,  40  Id. 
618. 

2  Green  v.  Riddle,  8  Wheaton,  1;  Louisiana  v.  New  Orleans,  102  U.  S. 
203,  206 ;  Seibert  v.  Lewis,  122  Id.  284,  295. 

8  Penrose  v.  The  Erie  Canal  Co.,  56  Pa.  46. 

*  Von  Hoffman  v.  The  City  of  Quincy,  4  Wallace,  535;  Butz  v.  The 
City  of  Muscatine,  8  Id.  583.     "  If  the  remedy  be  taken  away,  the  con- 


IF  AN  ADEQUATE   REMEDY  REMAINS.  697 

It  is  not  less  true  conversely  that  the  abrogation  of  a 
remedy  will  not  impair  the  obligation  if  other  and  sufficient 
means  of  redress  exist  or  are  given  in  its  stead.  The  debtor's 
person  may  be  exempted  from  arrest  if  the  right  to  take  his 
property  in  execution  remains  intact,^  and  statutes  abolishing 
imprisonment  for  debt  may  consequently  retroact  on  prior 
contracts.2  For  as  the  motive  for  confining  the  debtor  is  not, 
agreeably  to  the  view  taken  in  modern  times,  punishment, 
but  to  compel  the  application  of  his  assets  to  the  discharge 
of  his  liabilities,  the  creditor  is  not  prejudiced  so  long  as  he 
can  effect  the  object  by  other  means. 

tract  is  in  effect  annulled.  Nothing  is  left  of  it  of  any  value  to  the  party 
■whose  rights  are  thus  invaded.  This  subject  was  fully  considered  in 
Von  Hoffman  v.  The  City  of  Quincy,  4  Wallace,  557.  It  was  there  held 
that  laws  for  the  collection  of  the  requisite  taxes  existing  when  the  bonds 
were  issued,  and  subsequently  repealed,  still  subsisted  for  the  purposes  of 
the  contract,  and  that  a  writ  of  mandamus  might  issue  from  the  circuit 
court  to  enforce  them.  Here  the  remedy  is  taken  away,  not  by  a  subse- 
quent repeal,  but  by  subsequent  judicial  decisions.  The  effect  upon  the 
contract  is  the  same  as  if  the  provisions  of  the  code  had  been  repealed. 
This  court  construes  all  contracts  brought  before  it  for  consideration, 
and  in  doing  so  its  action  is  independent  of  that  of  the  State  courts, 
which  may  have  exercised  their  judgment  upon  the  same  subj,ect.  Swift 
V.  Tyson,  16  Peters,  19.  This  is  one  of  the  functions  we  are  called  upon 
to  perform  in  this  case.  The  fact  that  one  of  the  elements  in  the  case  is 
a  statute  of  the  State  does  not  affect  the  legal  result.  We  are  of  the 
opinion  that  under  the  statutes  of  Iowa  in  force  when  the  contract  was 
made,  the  relator  is  entitled  to  the  remedy  he  asks,  and  that  this  right 
can  no  more  be  taken  away  by  subsequent  judicial  decisions  than  by 
subsequent  legislation.  It  is  as  much  within  the  sphere  of  our  power  and 
duties  ta  protect  the  contract  from  the  former  as  from  the  latter,  and  we 
are  no  more  concluded  by  one  than  the  other.  We  cannot  in  any  other 
way  give  effect  to  the  contract  of  the  parties  as  we  understand  it.  This 
contract  was  entered  into  in  1854.  The  earliest  of  the  adjudications  to 
which  we  have  referred  was  made  in  1862.  If  the  construction  ultimately 
given  to  the  statute  had  preceded  the  issuing  of  the  bonds,  and  become 
the  settled  law  of  the  State  before  that  time,  the  case,  as  regards  this 
point,  would  have  presented  a  different  aspect."  Jefferson  Branch  of 
the  State  Bank  v.  Skeljy,  1  Black,  436. 

1  Mason  v.  Haile,  12  Wheaton,  370;  Beers  v.  Haughton,  9  Peters,  359 ; 
Donnelly  v.  Corbett,  3  Seld.  500. 

2  Penniman's  Case,  103  U.  S.  714. 


698  EIGHT  TO  DISTKAIN  MAY  BE 

In  Van  Rensselaer  v,  Krjder,^  and  Conkey  v,  Hart,^  a  law 
abrogating  the  right  of  distress  for  rent  was  in  like  manner 
held  applicable  to  existing  leases  as  well  as  to  those  made 
after  the  passage  of  the  statute.  The  landlord  could  still 
proceed  to  judgment  and  execution,  and  merely  lost  a  sum- 
mary means  of  attaining  an  end  which  might  still  be  reached 
in  other  ways. 

In  determining  this  point  the  court  came  to  the  more 
questionable  conclusion  that  it  mattered  not  that  the  lease 
contained  a  covenant  authorizing  the  landlord  to  enter  and 
distrain.  Johnson,  J.,  said  that  had  it  clearly  been  the  in- 
tention of  the  parties  to  preserve  the  right  of  distress,  al- 
though the  legislature  should  see  fit  to  abolish  it,  the  subject 
was  one  over  which  the  citizen  had  no  control,  or  none  that 
should  be  allowed  to  supersede  the  sovereign  power  of  the 
State.  If  the  parties  could  stipulate  for  a  particular  remedy, 
and  their  agreement  would,  by  virtue  of  the  Constitution 
of  the  United  States,  supersede  the  authority  of  the  legis- 
lature, whatever  existed  at  any  time  as  part  of  the  remedial 
law  might  be  perpetuated  as  it  regarded  any  number  of 
persons  who  chose  so  to  agree. 

A  stipulation  that  a  creditor  shall  be  entitled  to  levy  on  all 
the  debtor's  property,  whether  it  is  or  is  not  legally  exempt, 
is  viewed  in  like  manner  by  the  same  tribunal  as  an  attempt 
to  substitute  the  will  of  the  parties  for  that  of  the  legislature, 
in  a  matter  where  the  latter  should  be  supreme,  which  is 
nugatory  as  regards  the  existing  law  and  relatively  to  subse- 
quent enactments.^ 

A  different  conclusion  has  been  reached  in  Pennsylvania, 
where  stay  and  execution  laws  are  held  to  be  within  the 
rule  quilibet  potest  renunciare  juri  pro  se  introducto  ;  *  and  one 
who  agrees  that  the  whole  of  his  property  shall  be  answerable 
for  his  debts,  or  that  judgment  may  be  entered  against  him 
without  stay  of  execution,  will  be  bound  by  his  under- 
taking,  notwithstanding  a  subsequent   enactment   that   no 


1  3  Kernan,  299.      »  Knettle  y.  Newcomb,  22  K  Y.  249. 

a  4  Id.  22.  *  Broom's  Legal  Maxims,  309 ;  48  Law  Lib.  200. 


ABOLISHED  RETROACTIVELY.  699 

such  waiver  shall  be  valid.^  In  Bilmeyer  v.  Evans,  a  pro- 
vision in  a  warrant  of  attorney  to  confess  judgment,  that 
there  should  be  no  stay  of  execution  after  the  day  named  for 
payment,  was  held  to  be  a  part  of  the  contract,  which  could 
not  be  annulled  retroactively  by  an  act  of  assembly.  "  If," 
said  Woodward,  J.,  *'  the  thing  provided  for  by  the  legisla- 
ture be  within  their  general  competence,  and  yet  be  the  very 
thing  expressly  excluded  by  a  particular  contract,  it  is  plain 
that,  as  to  the  parties  to  that  contract,  the  law  is  unconsti- 
tutional and  void,  because  it  impairs  the  obligation  of  their 
contract ;  nor  do  you  rescue  the  law  from  this  consequence 
by  calling  it  remedial.  The  legislature  can  no  more  subvert 
the  lawful  contracts  of  parties  under  the  guise  of  remedial 
legislation,  than  by  a  direct  assault.  They  can  pass  no  law 
that  impairs  the  obligation  of  contracts.  Exemption  statutes 
illustrate  this  whole  subject.  What  portion  of  a  man's  prop- 
erty shall  be  liable  for  his  debts,  and  what  shall  be  exempt, 
is  a  fair  subject  of  legislative  discretion.  Manifestly,  exemp- 
tion statutes  are  regulations  of  the  creditor's  remedies 
against  the  debtor's  property  ;  they  are  therefore  constitu- 
tional. But  in  a  particular  contract  the  debtor  stipulates 
that  he  will  have  no  exemption,  and  devotes  all  of  his 
property  to  the  payment  of  his  debts.  Now,  whilst  he 
cannot  repeal  the  law  by  his  agreement,  he  can  refuse  its 
favors.  His  contract  is  lawful  and  binding.  His  waiver  of 
legal  rights  has  become  parcel  of  the  obligation  of  his  con- 
tract, and  the  legislature  can  no  more  impair  that  obligation 
than  they  can  annul  the  entire  contract." 

In  considering  the  question,  it  is  necessary  to  discriminate 
between  an  undertaking  that  a  particular  remedy — as,  for 
instance,  a  fieri  facias — shall  subsist  as  a  means  of  enforcing 
a  contract,  and  an  undertaking  that  the  debtor  will  not 
apply  for  a  stay  of  execution,  or  withdraw  any  portion 
of  his  property  from  the  operation  of  the  writ.  In  the  latter 
case,  the  party  covenants  for  himself ;  in  the  former,  he  seeks 

1  McKinney  v.  McKinney,  6  Watts,  34;  Case  v.  Dunmore,  11  Harris, 
93;  Bowman  v.  Smiley,  7  Casey,  225;  Bilmeyer  v.  Evans,  4  Wright,  324; 
Lewis  V.  Lewis,  47  Pa.  127. 

VOL.   II.  —  4 


700  STIPULATION  THAT  THERE  SHALL 

to  control  the  legislature.  So  the  right  of  distress  is,  in 
its  strict  and  technical  sense,  an  authority  given  by  the  law, 
which  cannot  be  kept  alive  by  agreement  after  it  has  been 
recalled  by  a  statute  ;  but  a  stipulation  that  a  creditor  shall 
be  entitled  to  enter  and  take  such  goods  and  chattels  as 
he  can  find  in  a  house,  factory,  or  other  building  belonging 
to  the  debtor,  and  appropriate  them  in  payment  of  arrears 
of  rent,  or  a  demand  of  any  other  kind,  confers  a  power, 
arising  ex  contractu^  which  can  neither  be  revoked  by  the 
donor,  nor  abrogated  legislatively .^  The  distinction  is  the 
more  obvious  because  such  a  contract  only  covers  the  ten- 
ant's goods,  and  does  not,  like  the  common  law  power,  justify 
the  seizure  of  the  property  of  a  third  person,  though  found 
on  the  premises. 

There  is  another  aspect  of  the  question.  Is  such  legis- 
lation an  exercise  of  the  police  power  for  the  general  good, 
or  does  it  simply  confer  a  privilege  which  the  debtor  may 
waive  at  pleasure?  It  has  been  plausibly  contended  that 
exemption  laws  have  their  foundation  in  the  duty  of  pro- 
tecting men  against  the  consequences  of  their  own  improvi- 
dence, which  forbids  usurious  and  exorbitant  rates  of  interest, 
or  the  creation  of  a  mortgage  without  power  to  redeem. 
Every  one,  it  has  been  said,  may  dispense  with  rules  made 
solely  for  his  benefit,  but  not  with  those  which  concern 
the  community  as  a  whole.  When,  therefore,  the  legis- 
lature provides,  through  motives  of  humanity,  that  certain 
articles  of  prime  necessity  may  be  reserved  for  the  debtor's 
use,  he  should  not  be  allowed  to  frustrate  the  beneficial 
operation  of  the  statute.  It  is  not  enough  to  say  that  he 
should  be  free  to  choose  in  a  matter  which  so  nearly  con- 
cerns himself,  because  experience  shows  that  men  under  the 
pressure  of  want  are  apt  to  sacrifice  the  future  for  present 
ease,  and  honest  debtors  do  not  look  forward  to  a  default 
in  payment  which  will  render  them  liable  to  an  execution, 
and  are  therefore  ready  to  consent  that  no  part  of  their 
property  shall  be  exempt,  should  such  a  contingency  occur. 

1  2  Leading  Cases  in  Equity  (4  Am.  ed.),  1618;  Congreve  v.  Ebbits, 
10  Exch.  298;  Moody  v.  Wright,  13  Metcalf,  17,  32. 


BE  NO  STAY,  HOW  FAR  VALID.  701 

A  debtor  may  no  doubt  forego  the  right  to  exemption  when 
the  time  arrives,  as  a  mortgagor  may  release  the  equity  of 
redemption ;  but  a  prospective  agreement  to  that  effect  is 
void  in  the  latter  case,  and  may  be  deemed  questionable 
in  the  former.^ 

Whatever  the  true  view  may  be  in  such  cases,  it  is  clear 
that  a  right  or  power  conferred  in  terms,  or  resulting  from 
the  nature  of  the  contract,  cannot  be  taken  away  on  the 
plea  that  other  and  adequate  remedies  remain.  A  mortgagee 
is,  for  instance,  entitled  to  enter  and  take  the  rents  and 
profits,  by  virtue  of  his  ownership  of  the  legal  title,  without 
waiting  until  the  mortgagor  is  in  default ;  ^  and  a  law  which 
abrogates  this  right  will  not  be  less  unconstitutional  because 
he  may  still  bring  suit  for  the  debt,  or  proceed  to  a  fore- 
closure.^ A  clause  in  a  mortgage  of  land  or  chattels  author- 
izing the  mortgagee  to  take  possession  in  default  of  payment 
and  proceed  to  a  public  or  private  sale  is  an  integral  part  of 
the  contract  which  the  legislature  may  not  impair  ;  and  any 
attempt  on  their  part  to  hinder  or  postpone  the  exercise  of 
the  power  thus  conferred  will  fail.*  So  the  right  of  the 
mortgagor  to  redeem  cannot  be  taken  away  retroactively  by 
the  legislature,  although  they  may  abridge  the  period  within 
which  it  may  be  exercised.^ 

The  obligation  of  a  contract  may  also  be  impaired  by  a  law 
withdrawing  the  property  of  the  debtor  from  execution,  or 
placing  it  in  any  other  way  beyond  the  reach  of  the  creditor.^ 
In  Currail  v.  The  Bank  of  Arkansas  the  legislature  of  Arkan- 
sas chartered  a  bank,  and  the  State  contributed  the  entire 
capital,  there  being  no  other  party  interested.      The  bank 

1  Stafford  y.  Elliott,  59  Ga.  837;  Green  v.  Watson,  75  Id.  471;  Phelps 
V.  Phelps,  72  111.  545;  Recht  v.  Kelly,  82  Id.  148;  Curtis  v.  O'Brien,  20 
Iowa,  376;  Maxwell  v.  Reed,  7  Wis.  582. 

2  1  Smith's  Leading  Cases  (8  Am.  ed.),  917. 

8  Mundy  v.  Munroe,  1  Mich.  76;  Blackwood  v.  Yan  Vliet,  11  Id.  252. 

*  Borie  v.  Borie,  27  Minn.  371;  Taylor  v.  Stearns,  18  Grattan,  244; 
Bronson  y.  Kinzie,  1  Howard,  317.     See  ante,  p.  690. 

5  Robinson  v,  Howe,  13  Wis.  346;  Butler  y.  Palmer,  1  Hill,  324; 
Cogell  V.  Power,  1  Mich.  369. 

^  Curran  v.  The  Bank  of  Arkansas,  15  Howard,  304. 


702  EETEOACTIVE  EXEMPTION  FROM  LEVY. 

failed,  and  a  statute  was  passed  providing  that  the  bonds  of 
the  State  should  be  received  in  payment  of  debts  due  to  the 
bank,  and  appropriating  its  assets  to  repay  the  amount  ad- 
vanced by  the  State.  The  Supreme  Court  held  that  as  the 
State  was  the  sole  stockholder,  the  charter  was  an  agency, 
and  not  a  contract  in  the  sense  of  the  Constitution  of  the 
United  States  ;  but  that  a  principal  could  not,  by  revoking 
the  authority  of  his  agent,  invalidate  the  contracts  which  had 
been  made  while  it  was  still  in  force.  The  assets  of  the  bank 
were  subject  to  a  trust  for  its  creditors,  who  had  a  right 
of  priority  which  entitled  them  to  a  preference  over  its 
stockholders ;  and  this  principle  was  not  less  applicable  be- 
cause the  entire  stock  belonged  to  the  State.  The  legislature 
might  repeal  the  charter,  but  the  trust  would  remain,  and 
would  be  enforced  by  a  court  of  equity.  It  followed  that 
the  State  of  Arkansas  could  neither  take  the  property  of  the 
bank  to  satisfy  its  demand,  nor  compel  the  bank  to  receive 
its  bonds  in  payment. 

It  seems,  nevertheless,  to  be  generally  conceded,  both  in 
the  State  courts  and  by  the  Supreme  Court  of  the  United 
States,  that  the  necessary  implements  of  agriculture,  the 
tools  of  a  mechanic,  or  articles  needful  for  household  use, 
such  as  stoves,  bedding,  or  wearing  apparel,  may  be  exempted 
from  execution  by  a  law  passed  after  the  period  at  which 
the  obligation  was  contracted,^  although  the  debtor  has  no 
other  property,  and  the  effect  is  entirely  to  frustrate  the 
creditor. 

It  is  not  easy  to  reconcile  such  a  result  with  the  doctrine 
that  whatever  impairs  the  remedy  impairs  the  right.  If  the 
legislature  can  determine  finall}^  what  and  how  much  of  the 
debtor's  property  shall  be  exempt,  it  may  so  restrict  the  remedy 
as  to  render  it  practically  unavailing.  If,  on  the  other 
hand,  the  ultimate  determination  rests  with  the  judiciary,  by 
what  rule  are  they  to  be  guided  in  revising  the  decision 

1  See  Quackenbush  v.  Danks,  1  Denio,  128;  1  Comstock,  129;  Morse 
V.  Goold,  1  Kernan,  281;  Rockwell  v.  Hubbell,  2  Douglas  (Mich.),  288; 
Edwards  v.  Kearzey,  96  U.  S.  661;  Bronson  v.  Kinzie,  1  Howard,  311; 
McCracken  v.  Hayward,  2  Id.  608. 


STATE  MAY  REGULATE  PROCEDURE.  703 

of  the  legislature?  The  most  satisfactory  answer  to  these 
queries  is,  as  already  suggested,  that  such  legislation  should 
be  regarded  as  an  exercise  of  the  police  power  in  obedience 
to  the  dictate  of  humanity  that  the  debtor  shall  not  be  de- 
prived of  the  things  which  are  indispensable  to  existence ; 
and  should  they  transcend  these  limits,  the  error  may  be 
rectified  by  the  courts.^ 

Logical  as  seems  the  inference  that,  since  laws  postponing 
the  period  of  performance,  and  laws  postponing  the  period 
when  performance  can  be  enforced,  tend  to  the  same  result, 
they  should  be  classed  in  the  same  category,  there  are  other 
considerations  that  lead  to  a  different  conclusion,  which  is 
sustained  by  a  large  and  increasing  array  of  authorities. 
Procedure,  including  the  manner  of  bringing  suit,  the  steps  to 
be  taken  during  the  progress  of  the  cause,  the  form  and  effect 
of  judgments,  and  the  writs  whereby  they  are  carried  into 
execution,  is  under  the  control  of  the  legislature,  who  may 
modify  it  by  substituting  new  methods,  which,  though  dila- 
tory and  less  effectual  than  those  previously  in  use,  still 
afford  a  substantial  means  of  redress.^ 

What  alterations  are  expedient  and  admissible,  is  neces- 
sarily in  the  first  instance  for  the  body  which  enacts  the  law ; 
and  although  their  decision  is  not  conclusive  on  the  judiciary, 
it  should  not  be  set  aside  unless  it  is  clearly  unwarranted  by 
the  circumstances  and  inconsistent  with  the  constitutional 
prohibition.^     Whenever  a  discretionary  power  is  granted  to 

1  Hawthorne  v.  Calef,  2  Wallace,  10. 

2  Tennesse  v.  Sneed,  96  U.  S.  69  ;  Railroad  Co.  v.  Hecht,  95  Id.  168; 
Bronson  v.  Kinzie,  1  Howard,  311,  315;  Penniman  v.  United  States, 
103  Id.  714;  Antoni  v.  Greenhow,  107  U.  S.  766  ;  Templeton  v.  Home, 
82  111.  492;  Evans  v.  Montgomery,  4  W.  &  S.  220;  Long's  Appeal,  87  Pa. 
114;  Oriental  Bank  v.  Freese,  18  Me.  109;  Bigelow  v.  Pritchard,  21  Pick. 
109;  Morse  v.  Gould,  11  N.  Y.  281,  287;  Johnson  v.  Higgins,  3  Met. 
(Ky.),  567;  Barkley  v.  Glover,  4  Id.  44. 

8  Sturges  V.  Crowninshield,  4  Wheaton,  122,  200;  Tennessee  v.  Sneed, 
96  U.  S.  69;  Antoni  v.  Greenhow,  107  Id.  766;  Jackson  v.  Lampshire,  3 
Peters,  280  ;  Professor  Thayer's  article  on  Legal  Tender,  Harvard  Law 
Review,  May,  1887,  p.  92;  Johnson  v.  Higgins,  3  Met.  (Ky.),  507; 
Earaes  v.  Savage,  71  Me.  342;  Sears  v.  Cottrell,  5  Mich.  251. 


704  PRESUMPTION  THAT  LEGISLATIVE 

a  department  of  the  government,  there  is  a  presumption  that 
it  has  been  duly  exercised,  which  should  not  be  lightly  disre- 
garded ;^  or,  as  the  principle  is  sometimes  stated,  to  justify  a 
judicial  declaration  that  legislation  is  unconstitutional  the 
fact  must  be  "  plain  beyond  a  reasonable  doubt."  ^  And  as 
the  line  between  modifications  which  do  and  those  which  do 
not  impair  the  obligation  has  not  been  definitely  ascertained, 
it  is  not  surprising  that  opposite  conclusions  should  be  drawn 
from  premises  which  are  in  the  main  analogous.^ 

Statutes  according  a  stay  of  execution  retroactively  to  the 
debtor,  or  abridging  the  period  within  which  the  creditor  may 
sue,  are  within  the  principle,  because  the  question  is  one  of 
reasonable  time;*  although  even  here  the  courts  will  not 
allow  a  manifestly  injurious  law  to  stand.^  But  the  legisla- 
ture has  no  such  discretion  as  regards  the  consideration  of 
the  contract  or  the  time  or  mode  of  performance.  Here  the 
bounds  are  fixed  by  the  agreement  of  the  parties  and  the 
constitutional  prohibition,  and  the  smallest  alteration  is  as 
inadmissible  as  the  greatest.^  If  they  are  overpassed,  the 
conclusion  reached  by  the  legislative  department  of  the 
government  counts  for  nothing,^  and  the  duty  of  the  judi- 
ciary is  plain.  The  substitution  of  a  tardy  and  inefficacious 
remedy  for  one  which  affords  an  adequate  measure  of  re- 
dress does  not,  it  seems,  fall  within  this  principle,  because 

1  Terry  v.  Anderson,  95  U.  S.  628. 

2  Ogden  V.  Saunders,  12  Wheaton,  213,  270;  Sinking-Fund  Cases,  99 
U.  S.  718;  Autoni  v.  Greenhow,  107  Id.  766;  People  v.  Orange,  17  N.  Y. 
241. 

8  Von  Hoffman  v.  Quincy,  4  Wallace,  535;  Black  on  Constitutional 
Prohibitions,  sections  134,  136.  See  and  contrast  the  language  held  iu 
Kring  v.  Missouri,  107  U.  S.  221,  and  Edwards  v.  Kearzey,  96  Id.  601, 
604,  with  the  dicta  in  Antoni  v.  Greenhow. 

*  See  Jackson  v.  Lampshire,  3  Peters  280 ;  Koshkoning  v.  Burton,  104 
U.  S.  668;  Terry  o.  Anderson,  95  Id.  628. 

5  Osborn  v.  Jaines,  17  Wis.  593;  Berry  v.  Randall,  4  Met.  (Ky.),  292; 
Edwards  v.  Kearzey,  96  U.  S.  601;  Hudspath  v.  Davis,  41  Ala.  389; 
Jacobs  V.  Smallwood,  63  N.  C.  112. 

6  See  ante,  p.  678. 

'  See  Edwards  v.  Kearzey,  96  U.  S.  601,  604;  Merchants'  Bank  v.  State 
Bank,  10  Wallace,  604. 


ARE  CONSTITUTIONAL.  705 

the  legislature  are  entitled  to  alter  the  course  of  procedure, 
and  must  determine  in  the  first  instance  how  the  power  shall 
be  exercised.  If  it  be  urged  that  the  question  is  here  legal,  as 
arising  from  the  relation  between  admitted  facts,  the  remark 
is  unanswerable ,  ^  and  yet,  agreeably  to  many  authorities, 
the  change  cannot  be  pronounced  invalid  unless  the  new 
method  is  not  only  inferior  to  the  old,  but  so  insufficient  as 
to  leave  the  obligation  to  fulfil  the  contract  without  any 
effectual  sanction.^  As  the  law  now  stands,  persons  who 
have  mutual  demands  may  each  give  the  amount  due  him 
in  evidence  as  a  defence  to  a  suit  brought  by  the  other.  This 
remedy  where  the  plaintiff  is  insolvent,  or  cannot  be  reached 
by  process,  may  be  the  only  one  through  which  the  defend- 
ant can  obtain  redress.  And  yet  it  might  seemingly  be 
repealed  both  as  regards  past  and  future  contracts,  and  one 
or  both  of  the  parties  put  to  the  expense,  uncertainty,  and 
delay  of  a  cross-action.  Such,  at  least,  would  seem  to  be  the 
view  taken  in  a  recent  case  of  great  authority ;  and  it  may 
be  inferred  from  the  same  decision  that  such  a  course  is  not 
unconstitutional  even  when  the  plaintiff  has  covenanted  that 
the  sum  due  to  the  defendant  shall  be  received  in  payment 
of  the  amount  which  he  owes.^ 

The  doctrine  that  an  adequate  remedy  may  be  substituted 
for  that  originally  given,  although  it  is  dilatory  and  involves 
an  outlay  which  the  creditor  may  be  unable  to  afford,  was 
carried  in  the  case  above  cited  to  a  length  which  may  seem 
extreme.  Coupon-bonds  were  issued  by  Virginia  in  1873 
with  a  provision  that  the  coupons  should  be  taken  for  taxes ; 
and  it  was  held  by  the  courts  of  last  resort  that  the  con- 
tract took  effect  in  favor  of  every  one  to  whom  the  coupons 
were  transferred,  and  that  the  tax-collectors  were  as  much 
bound  to  accept  them  from  such  persons  as  from  the  first 
holders  of  the  bonds.*     It  was  subsequently  enacted,  with 

1  See  Louisiana  v.  New  Orleans,  102  U.  S.  203,  206;  Seibert  r.  Lewis, 
122  Id.  284,  295. 

*-*  Morse  v.  Gould,  11  N.  Y.  281,  287. 

«  See  Antoni  v.  Greenhow,  107  U.  S.  766. 

*  See  ante,  p.  586;  also  Hartman  v.  Greenhow,  102  U.  S.  672 ;  114  Id.  270. 


706  WHAT   CHANGE  IN  THE  KEMEDY 

the  professed  object  of  preventing  fraud,  that  when  the 
coupons  were  tendered,  the  collector  should  accept  them, 
give  a  receipt,  and  require  payment  in  money ;  and  the 
tax-payer  might  then  file  his  petition  in  the  Hustings  Court 
and  have  a  jury  impanelled  to  determine  his  right  to  the 
coupons,  and  whether  they  were  spurious.  If  the  verdict 
went  in  his  favor,  the  amount  which  he  had  paid  for  the  tax 
was  to  be  refunded  out  of  the  first  money  in  the  treasury, 
in  preference  to  all  other  claims.  It  was  contended  for  the 
coupon-holders  that  the  statute,  though  favored  by  a  political 
party  which  professed  to  cherish  public  credit,  was  a  device 
to  cover  a  breach  of  faith,  and  contrary  to  the  constitutional 
prohibition  which  guards  the  sanctity  of  contracts.  The 
prompt  and  effectual  remedy  under  Hartman  v.  Greenhow 
against  the  tax-collector  was  taken  away,  and  the  creditors 
were  compelled  to  look  for  their  money  to  the  State,  and  if 
she  chose  to  withhold  it,  might  be  unable  to  obtain  redress. 
The  statute  moreover  contravened  the  rule  by  substituting 
a  different  means  of  pajanent  for  that  which  the  State  had 
agreed  to  accept,  and  impaired  the  obligation  of  the  contract.^ 
It  was  however  sustained  in  the  Supreme  Court  of  the  United 
States,  in  opposition  to  the  opinion  of  Field  and  Harlan,  JJ., 
who  contended  that  the  remedy  was  so  obstructed  as  to 
impair  the  right.^ 

1  Wilmington  R.  R.  Co.  v.  King,  91  U.  S.  3 ;  Dundas  v.  Bowler,  3 
McLean,  397. 

'^  Antoni  v.  Greenhow,  107  U.  S.  766;  see  Black,  Constitutional  Pro- 
hibitions, section  86 

"  It  cannot  be  denied  that  as  a  general  rule,  laws  applicable  to  the  case 
which  are  in  force  at  the  time  and  place  of  making  a  contract,  enter  into 
and  form  part  of  the  contract  itself,  and  '  that  this  embraces  alike  those 
laws  which  affect  its  validity,  construction,  discharge,  and  enforcement.' 
Walker  v.  Whitehead,  16  Wallace,  314,  317.  But  it  is  equally  well  settled 
that  changes  in  the  forms  of  action  and  modes  of  proceeding  do  not 
amount  to  an  impairment  of  the  obligations  of  a  contract  if  an  adequate 
and  efficacious  remedy  is  left.  This  limitation  upon  the  prohibitory  clause 
of  the  Constitution  in  respect  to  the  legislative  power  of  the  States  over 
the  obligation  of  contracts  was  suggested  by  Chief-Justice  Marshall  in 
Sturges  V.  Crowninshield,  4  Wheaton,  122,  and  has  been  uniformly  acted 
on  since.    Mason  v.  Haile,  12  Wheaton,  370 ;  Bronson  v.  Kinzie,  1  Howard, 


IMPAIRS  THE   CONTRACT.  707 

While  such  is  the  view  taken  in  some  instances,  exemption 
and  stay-laws  have  been  held  in  others,  of  equal  weight,  to  be 
as  much  within  the  Constitutional  prohibition  as  laws  oper- 
ating directly  on  the  contract  to  vary  its  terms,  and  not  to 
afford  room  for  the  exercise  of  a  discretionary  power.  When 
the  organic  law  provides  that  a  thing  shall  not  be  done,  and 
it  is  done,  the  case  does  not  admit  of  a  reasonable  doubt. 
Laws  postponing  the  period  of  payment  or  lessening  the 
amount   due,   are   consequently   unconstitutional;    and    the 

311;  Von  Hoffman  v.  City  of  Quincy,  4  Wallace,  535;  Drehman  v.  Stifle,  8 
Id.  314;  Terry  v.  Anderson,  95  U.  S.  628;  Tennessee  v.  Sneed,  96  Id.  69; 
Louisiana  v,  Pilsbury,  105  Id.  278.  As  was  very  properly  said  by  Mr. 
Justice  Swayne  in  Von  Hoffman  v.  City  of  Quincy,  ubi  supra :  '  It  is  com- 
petent for  the  States  to  change  the  form  of  the  remedy,  or  to  modify  it 
otherwise,  as  they  may  see  fit,  provided  no  substantial  right  secured  by 
the  contract  is  thereby  impaired.  No  attempt  has  been  made  to  fix  de- 
finitely the  line  between  alterations  of  the  remedy,  which  are  to  be  deemed 
legitimate,  and  those  which,  under  the  form  of  modifying  the  remedy, 
impair  substantial  rights.  Every  case  must  be  determined  upon  its  own 
circumstances.  Whenever  the  result  last  mentioned  is  produced,  the  act  is 
within  the  prohibition  of  the  Constitution,  and  to  that  extent  void,'  p.  553. 
In  all  such  cases  the  question  becomes,  therefore,  one  of  reasonableness, 
and  of  that  the  legislature  is  primarily  the  judge,  Jackson  v.  Lampshire, 
3  Pet.  280;  Terry  v.  Anderson,  ubi  supra.  We  ought  never  to  overrule 
the  decision  of  the  legislative  department  of  the  government  unless  a 
palpable  error  has  been  committed.  If  a  state  of  facts  could  exist  that 
would  justify  the  change  in  a  remedy  which  has  been  made,  we  must 
presume  it  did  exist,  and  that  the  law  was  passed  on  that  account.  Munn 
V.  Illinois,  94  U.  S.  113.  We  have  nothing  to  do  with  the  motives  of  the 
legislature,  if  what  they  do  is  within  the  scope  of  their  powers  under  the 
Constitution."     Antoni  v.  Greenhow,  107  U.  S. 

The  proposition  that  "if  any  state  of  facts  could  exist  "  (as,  for  in- 
stance, invasion  or  rebellion)  "  that  would  justify  a  change  which  hinders 
and  delays  the  creditor,  the  court  must  presume  that  it  does  exist," 
instead  of  viewing  the  statute  in  the  light  of  the  actual  state  of  things, 
is  novel,  and  would  justify  the  grant  of  a  stay  of  execution  for  three 
years  to  every  man  who  enters  the  military  service  of  the  United  States 
in  time  of  peace,  because  such  a  delay  might  be  justifiable  if  the  country 
were  at  war. 

Whoever  reads  the  dicta  of  the  Supreme  Court  of  the  United  States  on 
this  important  subject,  as  contrasted  in  Black  on  Constitutional  Prohibi- 
tions, sections  133-136,  will  be  convinced  that  if  not  irreconcilable,  they 
look  both  ways,  or  relate  to  the  different  sides  of  the  shield. 


708       PKOPERTY  CANNOT  BE  EETROACTIVELY 

effect  is  the  same  when  the  creditor  is  delayed  in  pro- 
ceeding to  judgment  or  execution. ^  An  indefinite  stay  of 
execution  is  necessarily  invalid,  whatever  may  be  the  cir- 
cumstances which  led  to  its  enactment ;  ^  and  in  Webster  v. 
Rose  ^  a  stay  for  one  year,  on  giving  security  for  payment 
when  the  time  expired,  was  held  equally  invalid.  A  like  view 
has  been  taken  of  acts  precluding  mortgagees  from  proceeding 
on  the  bond  until  they  have  exhausted  the  remedy  on  the  ' 
mortgage.* 

Stay-laws  were  also  pointedly  condemned  in  North  Caro- 
lina;^ and  when  the  same  court  sustained  a  law  retroactively 
withdrawing  a  large  amount  of  the  debtor's  property  from 
execution,  the  decision  was  reversed  by  the  national  court  of 
last  resort  on  the  ground  that  there  is  no  valid  distinction 
between  postponing  the  period  at  which  judgment  can  be 
rendered,  and  restricting  the  operation  of  the  remedy  when 
obtained.^  When  the  facts  are  undisputed,  it  is  the  duty  of 
the  court  to  declare  the  law,  without  deferring  to  the  view 
taken  by  the  legislature.  Qui  serius  solvit,  minus  solvit;  and 
it  is  also  true  that  enabling  the  debtor  to  withhold  his  prop- 
erty from  the  creditor  lessens  the  obligation.  The  dicta  of 
Chief-Justice  Taney  in  Bronson  v,  Kinzie,"  were  dismissed 
by  sajdng  "  the  learned  Chief-Justice  seems  to  have  had  in 
his  mind  the  maxim  de  minimis,  etc.  Upon  no  other  ground 
can  any  exemption  be  justified.  '  Policy  and  humanity  '  are 
dangerous  guides  in  the  discussion  of  a  legal  proposition. 
He  who  follows  them  far  is  apt  to  bring  back  the  means  of 
error  and  delusion.    The  prohibition  contains  no  qualification, 

1  AVebster  v.  Rose,  6  Heiskell,  93,  102 ;  Hudspeth  v.  Davis,  41  Ala.  389; 
Johnson  v.  Duncan,  3  Martin  (La.),  530 

2  Williams's  Appeal,  72  Pa.  214,  219;  Barnes  v.  Barnes,  8  N.  C.  366  ; 
Johnson  v.  Higgins,  3  Metcalf  (Ky.),  567;  Hudspeth  v.  Davis,  41  Ala. 
387. 

3  6  Heiskell,  93. 

4  Baldwin  v.  Flagg,  43  N.  J.  Law,  497-503. 

s  Jacobs  V.  Smallwood,  63  N.  C.  385;  Barnes  v.  Barnes,  8  Jones 
(N.  C.  Law),  366. 

«  Edwards  v.  Kearzey,  96  U.  S.  601. 
'  See  ante,  p.  691. 


EXEMPTED  FEOM  EXECUTION.  709 

and  we  have  no  judicial  authority  to  interpolate  any.     Our 
duty  is  simply  to  execute  it."^ 

In  Seibert  v.  Lewis,^  the  question  grew,  as  in  Antoni  v. 
Greenhovv,  out  of  the  substitution  of  an  inferior  remedy, 
which,  if  susceptible  of  being  used  efficiently,  was  yet  clogged 
with  conditions  tending  to  hinder  and  delay  the  creditor; 

1  *'It  is  the  established  law  of  North  Carolina  that  stay-laws  are  void 
because  they  are  in  conflict  with  the  national  Constitution.  Jacobs  v. 
Smallwood,  63  N".  C.  112;  Jones  v.  Crittenden,  1  Law  Repos.  N.  C.  385; 
Barnes  v.  Barnes  et  al.,  8  Jones  (N.  C.  Law),  3(d6.  This  ruling  is  clearly 
correct.  Such  laws  change  a  term  of  the  contract  by  postponing  the  time 
of  payment.  This  impairs  its  obligation,  by  making  it  less  valuable  to  the 
creditor.  But  it  does  this  solely  by  operating  on  the  remedy.  The  con- 
tract is  not  otherwise  touched  by  the  offending  law.  Let  us  suppose  a 
case.  A  party  recovers  two  judgments,  one  against  A,  the  other  against 
B,  each  for  the  sum  of  $1,500  upon  a  promissory  note.  Each  debtor 
has  property  worth  the  amount  of  the  judgment,  and  no  more.  The 
legislature  thereafter  passes  a  law  declaring  that  all  past  and  future 
judgments  shall  be  collected  'in  four  equal  annual  instalments.'  At 
the  same  time  another  law  is  passed,  which  exempts  from  execution  the 
debtor's  property  to  the  amount  of  $1,500.  The  court  holds  the  former 
law  void,  and  the  latter  valid.  Is  not  such  a  result  a  legal  solecism?  Can 
the  two  judgments  be  reconciled?  One  law  postpones  the  remedy,  the 
other  destroys  it,  except  in  the  contingency  that  the  debtor  shall  acquire 
more  property,  —  a  thing  that  may  not  occur,  and  that  cannot  occur  if  he 
die  before  the  acquisition  is  made.  Both  laws  involve  the  same  principle 
and  rest  on  the  same  basis.  They  must  stand  or  fall  together.  The  con- 
cession that  the  former  is  invalid  cuts  away  the  foundation  from  under  the 
latter.  If  a  State  may  stay  the  remedy  for  one  fixed  period,  however 
short,  it  may  for  another,  however  long.  And  if  it  may  exempt  property 
to  the  amount  here  in  question,  it  may  do  so  to  any  amount.  This,  as 
regards  the  mode  of  impairment  we  are  considering,  would  annul  the 
inhibition  of  the  Constitution,  and  set  at  nought  the  salutary  restriction 
it  was  intended  to  impose."     Edwards  v.  Kearzey,  96  U.  S.  601,  604. 

It  seems  proper  to  add  that  in  this  as  in  nearly  all  the  instances  where 
stay  and  exemption  laws  have  been  held  invalid,  the  debtor  was  not 
merely  indulged  at  the  expense  of  the  creditor,  but  to  an  extent  which 
manifestly  impaired  the  obligation  ;  and  the  question  whether  such  favors 
may  be  constitutional  when  reasonable  in  extent  and  dictated  by  policy 
and  humanity  may,-  notwithstanding  the  language  held  in  Edwards  v. 
Kearzey,  be  considered  as  still  open  in  the  court  of  last  resort.  (See 
Black  on  Constitutional  Prohibitions,  section  166.) 

2  122  U.  S.  284. 


710  AN  INJURIOUS   CHANGE  IN   THE 

and  the  court  reverted  to  the  doctrine  of  Edwards  v.  Kear- 
zey,  "  that  the  remedy  subsisting  in  the  State  when  and 
where  the  contract  is  made  and  is  to  be  performed,  is  a  part 
of  its  obligation,  and  any  subsequent  law  of  the  State  which 
so  affects  that  remedy  as  substantially  to  impair  and  lessen  the 
value  of  the  contract,  is  forbidden  by  the  Constitution,  and 
is  therefore  void."  The  Missouri  legislature,  to  facilitate  the 
construction  of  railroads,  enacted  that  the  County  Court 
should  levy  a  special  tax,  in  order  to  pay  any  bond  which 
might  be  issued  by  a  municipal  corporation  on  account  of  a 
subscription  to  the  stock  of  a  railroad  company.  A  sub- 
sequent statute  provided  that  no  such  tax  should  be  levied 
unless  the  Missouri  Circuit  Court  was  satisfied  that  it  was 
necessary  and  would  not  be  in  conflict  with  the  Constitution 
and  laws  of  the  State.  No  such  action  was  taken  in  the 
State  courts,  and  the  Circuit  Court  of  the  United  States 
issued  a  peremptory  mandamus  commanding  the  County 
Court  to  levy  a  tax  in  accordance  with  the  law  as  it  originally 
stood,  to  pay  bonds  which  had  been  executed  before  the 
change.  The  tax-collector  having  been  enjoined  by  the  State 
courts  not  to  collect  the  tax,  and  commanded  by  the  United 
States  Circuit  Court  to  proceed,  the  cause  was  brought  by 
a  writ  of  error  before  the  court  of  last  resort  at  Washington. 
It  might  seemingly  have  been  held  under  these  circumstances, 
with  as  much  reason  as  in  Antoni  v.  Greenhow,  that  if  a  cir- 
cuitous way  had  been  substituted  for  the  direct  path  which 
lay  open  to  the  creditor  when  the  contract  was  made,  both 
would  lead  to  the  same  result.  The  State  courts  would  pre- 
sumably do  their  duty  in  levying  the  tax  ;  if  they  did  not, 
there  would  be  time  enough  for  the  federal  courts  to  inter- 
vene.^ But  the  Supreme  Court  of  the  United  States  decided 
that  whatever  legislation  lessens  the  means  by  which  the 
obligation  can  be  enforced,  impairs  it.  "  If  it  tends  to  post- 
pone or  retard  the  enforcement  of  the  contract,  the  obligation 
of  the  latter  is  to  that  extent  weakened.  The  contract  in 
the  case  under  consideration  was  not  only  that  the  creditor 

1  See  The  State  v.  County  Court,  Cape  Girardeau  Co.,  8  Western  Re- 
porter, G26. 


REMEDY  IMPAIRS  THE  CONTRACT.  711 

should  have  as  good  a  remedy  as  that  provided  by  the  con- 
tract when  made,  but  that  his  remedy  should  be  by  means  of 
a  tax,  in  reference  to  which  the  levy  and  collection  should  be 
as  efficacious  as  the  State  provided  for  the  benefit  of  its 
counties,  without  any  discrimination  against  him.  In  this 
vital  point  the  obligation  was  impaired  by  the  law  under 
which  the  collector  thought  to  justify  his  disobedience  to 
the  mandate  of  the  Circuit  Court."  It  is  difficult  to  see  that 
tliere  was  not  as  much  room  in  this  case  as  in  Antoni  v. 
Greenhow  for  the  reasonable  doubt  which  is  said  to  render  it 
the  duty  of  the  court  to  acquiesce  in  the  conclusion  reached 
by  the  legislature. 

Whatever  the  rule  may  be  under  other  circumstances, 
it  is  clear  that  when  the  creditor  has  acquired  a  lien  by 
obtaining  a  judgment  which  binds  the  debtor's  real  estate, 
or  by  issuing  a  fi.fa.  and  levying  on  his  personal  property, 
a  statute  which  devests  the  lien  will  not  be  less  unconsti- 
tutional because  the  creditor  may  still  issue  another  writ  and 
take  the  goods  at  the  risk  of  being  postponed  to  intervening 
levies.  Swayne,  J.,  said :  "  The  act  withdraws  the  land 
from  the  lien  of  the  judgment,  and  thus  destroys  a  vested 
right  of  property  which  the  creditor  had  acquired  in  the 
pursuit  of  the  remedy  to  which  he  was  entitled  by  the  law 
as  it  stood  when  the  judgment  was  recovered.  It  is,  in 
effect,  taking  one  person's  property  and  giving  it  to  another 
without  compensation.  This  is  contrary  to  reason  and  justice, 
and  to  the  fundamental  principles  of  the  social  compact."  ^ 
This  decision  seems  to  be  nearer  to  the  intent  of  the  Con- 
stitution than  Watson  v.  The  New  York  Central  R.  R.  Co.,^ 
where  the  lien  of  a  judgment  was  declared  to  be  subject  to 
the  control  of  the  legislature,  which  might  shorten  or  pro- 
long its  duration  retroactively,  or  abrogate  it  altogether. 
And  it  was  held  to  follow  that  land  might  be  taken  for  pub- 
lic use,  and  compensation  made  to  the  owner,  without  notice 
to  his  judgment-creditors.  The  lien  of  a  judgment  may  no 
doubt  be  abridged  retroactively ;  but  there  must,  as  in  the 

1  Gumi  r.  Barry,  15  Wallace,  610.     See  Calder  v.  Bull,  3  Dallas,  388. 

2  47  X.  Y.  157. 


712        INCHOATE  LTEX  MAY  BE  ABROGATED. 

case  of  other  statutes  of  limitation,  be  a  sufficient  time  left 
to  enforce  the  right  before  the  bar  goes  into  operation. 

The  inchoate  lien  resulting  from  the  service  of  an  attach- 
ment or  the  filing  of  a  mechanic's  claim,  stands  on  a  differ- 
ent footing,  at  all  events  so  far  as  it  affects  the  rights  of  third 
persons  who  are  not  parties  to  the  contract  under  which  the 
work  was  done  or  the  demand  or  debt  arose.^  In  this  instance 
an  act  approved  April  28,  1840,  declared  that  the  lien  arising 
under  the  act  of  June  16,  1836,  for  work  done  or  materials 
furnished  for  the  erection  of  a  building,  should  not  be  con- 
strued to  extend  to  any  other  or  greater  estate  than  that  of 
the  persons  in  possession  at  the  time  of  commencing  the  said 
building,  or  at  whose  instance  the  same  was  built.  The  ef- 
fect was  to  overrule  the  view  previously  taken  by  the  judges, 
that  a  tenant  for  life  or  years,  or,  as  it  would  seem,  an  entire 
stranger  to  the  title,  might  bind  tlie  freehold  without  the 
knowledge  or  consent  of  the  owner  or  reversioner.  Declara- 
tory statutes  cannot  ordinarily  retroact  consistently  with 
our  organic  laws ;  but  the  court  held  that  the  legislature 
might  well  repeal  a  statutory  remedy  which  enabled  a  man 
to  dispose  of  another's  land  for  the  payment  of  a  debt  con- 
tracted without  the  owner's  participation,  and  of  which  he 
might  be  ignorant,  until  it  was  too  late  to  defend  the  suit. 
The  explanation  seems  to  be  that  the  act  could  not  impair 
the  obligation  of  a  contract,  because  none  existed  between  the 
mechanic  who  filed,  and  the  owner  whose  land  was  affected 
by  the  lien. 

A  contract  will  not  be  impaired  by  a  law  obviating  a  tech- 
nical defence  or  giving  a  more  effectual  means  of  enforcing 
its  fulfilment.^  In  Taggart  v.  McGinn  a  statute  authorizing 
a  recovery  for  rent  reserved  in  covenant  against  the  lessee 
and  his  assigns,  whether  the  lease  was  by  deed-poll,  or  in- 
denture, and  although  he  did  not  sign  or  seal,  was  held 
to  be  retroactively  valid  by  virtue  of  this  principle.  So  in 
McElrath  v.  The  Railway  Co.,  Agnew,  C.-J.,  observed  that 

1  Evans  v.  Montgomery,  4  W.  &  S.  218. 

2  Bleakney  u.  The  Farmers'  Bank,  17  S.  &  R.  64;  Taggart  v.  McGinn, 
14  Pa.  155  ;  McElrath  v.  The  Railway  Co.,  55  Id.  189. 


LAWS   AFFECTING  THE  IVIEANS  OF  PROOF.  713 

one  who  is  in  default  has  no  right  to  complain  that  the 
legislature  have  given  an  additional  remedy  for  his  breach  of 
contract,  and  an  order  of  sale  was  made  in  favor  of  the 
mortgagees  of  a  railway  under  a  power  conferred  by  a 
statute  which  had  been  enacted  subsequently  to  the  execu- 
tion of  the  mortgage,  although  it  contained  a  clause  author- 
izing them  to  enter  and  take  the  tolls  if  default  were  made 
in  payment. 

The  obligation  of  contracts  may  also  be  impaired  by  deny- 
ing the  means  of  proof.  The  evidence,  like  the  remedy,  be- 
longs to  the  law  of  the  forum,  and  the  States  may  regulate 
both;^  but  their  power  must  be  exercised  in  subordination 
to  the  Constitution  of  the  United  States,  and  an  enactment 
that  the  deed  by  which  land  has  been  conveyed  shall  be  inad- 
missible on  behalf  of  the  grantee,  will  be  as  invalid  as  a  statute 
vacating  the  grant;  and  so  of  a  statute  of  frauds  applying 
to  contracts  which  were  not  required  to  be  in  writing  when 
made.''^  An  act  throwing  a  grant,  which  was  previously  in- 
disputable, open  to  disproof,  may  fall  in  the  same  category ; 
and  where  a  deed  executed  by  the  sheriff,  and  conveying  land 
that  has  been  sold  for  taxes,  was,  agreeably  to  the  existing 
law,  conclusive  that  all  the  statutory  requisites  had  been  ob- 
served, the  court  held  that  it  could  not  be  reduced  legisla- 
tively to  the  level  of  prima  facie  evidence.^  Acts  which 
retrospectively  enlarge  the  means  of  proof  by  rendering  certi- 
fied copies  admissible  in  evidence,  or  curing  the  defective 
acknowledgment  of  a  deed,  are  not  liable  to  this  objection, 
because  the  effect  is  not  to  impair  the  obligation  of  the  grant 
or  contract,  but  to  facilitate  the  remedies  by  which  it  may 
be  enforced.* 

Statutes  of  limitation  are  for  the  greater  part  rules  of  evi- 
dence providing,  in  favor  of  the  repose  and  safety  of  society, 
that  a  certain  lapse  of  time  shall  give  rise  to  an  adverse  pre- 

1  Jackson  v.  Lampshire,  3  Peters,  290. 

2  Von  HofEman  v.  The  City  of  Quincy,  4  Wallace,  538;  Edwards  v. 
Kearzey,  96  U.  S.  600.     See  ante,  p.  678. 

8  Smith  V.  Cleveland,  17  Wis.  526. 

*  See  Foster  v.  Gray,  22  Pa.  9;  Sherwood  v.  Adler,  3  Wharton,  431. 


714  KETROACTIVE   STATUTES   OF 

sumption  which  cannot  be  overcome  without  a  new  promise 
or  other  unequivocal  declaration  of  the  debtor's  purpose  to 
waive  the  benefit  so  conferred ;  and  as  the  length  of  this 
period  depends  upon  the  will  of  the  legislature,  it  may  be 
shortened  at  their  pleasure,  even  as  regards  antecedent  con- 
tracts, provided  the  bar  is  not  immediate,  and  a  reasonable 
time  remains  in  which  to  sue.^  If,  for  instance,  the  legisla- 
ture were  to  provide  on  the  1st  of  March  that  no  debts 
should  be  recoverable  unless  the  suit  was  brouqht  on  or 
before  the  first  of  the  next  ensuing  year,  the  law  might  be 
impolitic  or  unjust,  but  would  not  be  unconstitutional.^ 
Hence  a  law  reducing  the  period  of  limitation  retroactively 
from  six  years  to  three,  might  be  valid  if  contracts  of  more 
than  three  years'  standing  were  exempted  from  its  operation  ; 
but  a  statute  containing  no  such  exception  would  conflict 
with  the  Constitution  of  the  United  States,  by  leaving  rights 
of  action  dating  farther  back  than  three  years  without  a 
remedy.^ 

1  Osborn  v.  Jaines,  17  Wis.  577;  Terry  v.  Anderson,  95  U.  S.  628; 
Smith  V.  Morrison,  22  Pick.  430;  Peirce  v.  Tobey,  5  Metcalf,  172. 

2  Terry  v.  Anderson,  95  U.  S.  632;  Kenyon  v.  Stewart,  44  Pa.  180; 
Folmar's  Appeal,  68  Id.  482;  Korn  v.  Browne,  64  Id.  55. 

8  Osborn  v.  Jaines,  17  Wis.  573;  Pearce  t\  Patton,  7  B.  Monroe,  162; 
Berry  v.  Randall,  4  Metcalf  (Ky.),  292;  Mitchell  v.  Clark,  110  U.  S. 
636,  643;  State  t?.  Jones,  21  Md.  432;  Willard  v.  Harvey,  24  N.  H.  344; 
Morris  v.  Carter,  46  N.  J.  Law,  260.  The  principle  which  governs  in 
such  cases  is  stated  in  the  following  citation  from  Terry  v.  Anderson, 
95  U.  S.  632  :  — 

"  This  court  has  often  decided  that  statutes  of  limitation  affecting 
existing  rights  are  not  unconstitutional  if  a  reasonable  time  is  given  for 
the  commencement  of  an  action  before  the  bar  takes  place.  Hawkins  v. 
Barney,  5  Peters,  451;  Jackson  v.  Lampshire,  3  Id.  280;  Sohn  v.  Water- 
son,  17  AVallace,  596;  Christmas  v.  Russell,  5  Id.  290;  Sturges  v.  Crown- 
inshield,  4  Wheaton,  122.  It  is  difficult  to  see  why,  if  the  legislature 
may  prescribe  a  limitation  where  none  existed  before,  it  may  not  change 
one  which  has  already  been  established.  The  parties  to  a  contract  have 
no  more  a  vested  interest  in  a  particular  limitation  which  has  been  fixed, 
than  they  have  in  an  unrestricted  right  to  sue.  They  have  no  more  a 
vested  interest  in  the  time  for  the  commencement  of  an  action  than  they 
have  in  the  form  of  the  action  to  be  commenced;  and  as  to  the  forms 
of  action  or  modes  of  remedy,  it  is  well  settled  that  the  legislature  may 


LIMITATION,  AND  BEGISTKY  ACTS.  715 

In  like  manner,  a  statute  providing  that  antecedent  grants 
shall  be  postponed  if  not  recorded,  may  be  valid  if  giving 
the  grantee  sufficient  time  to  register  his  deed,  but  will 
be  void  if  the  effect  is  necessarily  to  invalidate  the  grant.^ 
In  Jackson  v.  Lampshire  ^  "  it  was  accordingly  declared 
to  be  within  the  undoubted  power  of  the  State  legislatures 
to  pass  recording  acts  postponing  the  elder  grantee  to  the 
younger,  if  the  deed  was  not  recorded  within  the  proper 
time ;  and  the  power  is  the  same  whether  the  instrument 
is  executed  before  or  after  the  passage  of  the  recording 
act.      Such   laws  are   analogous   to   statutes   of   limitation, 

change  them  at  its  discretion,  provided  adequate  means  of  enforcing  the 
right  remain.  In  all  such  cases  the  question  is  one  of  reasonableness, 
and  we  have  therefore  only  to  consider  whether  the  time  allowed  in  this 
statute  is,  under  all  the  circumstances,  reasonable.  Of  that  the  legisla- 
ture is  primarily  the  judge;  and  we  cannot  overrule  the  decision  of  that 
department  of  the  government,  unless  a  palpable  error  has  been  commit- 
ted. In  judging  of  that,  we  must  place  ourselves  in  the  position  of  the 
legislators,  and  must  measure  the  time  of  limitation  in  the  midst  of  the 
circumstances  which  surrounded  them,  as  nearly  as  possible  ;  for  what  is 
reasonable  in  a  particular  case  depends  upon  its  particular  facts.  Here, 
nine  months  and  seventeen  days  were  given  to  sue  upon  a  cause  of  action 
which  had  already  been  running  nearly  four  years  or  more.  .  .  .  The 
liability  to  be  enforced  was  that  of  a  stockholder,  under  an  act  of  incor- 
poration, for  the  ultimate  redemption  of  the  bills  of  a  bank  swept  away 
by  the  disasters  of  a  civil  war  which  had  involved  nearly  all  of  the  people 
of  the  State  in  heavy  pecuniary  misfortunes.  .  .  .  The  business  interests 
of  the  entire  people  of  the  State  had  been  overwhelmed  by  a  calamity 
common  to  all.  .  .  .  This  clearly  presented  a  case  for  legislative  inter- 
ference within  the  just  influence  of  constitutional  limitations.  For  this 
purpose  the  obligations  of  old  contracts  could  not  be  impaired,  but  their 
prompt  enforcement  could  be  insisted  upon,  or  an  abandonment  claimed. 
That,  as  we  think,  was  done  here,  and  no  more.  At  any  rate,  there  has 
not  been  such  an  abuse  of  legislative  power  as  to  justify  judicial  inter- 
ference. As  was  said  in  Jackson  v.  Lampshire,  supra,  '  The  time  and 
manner  of  their  operation  [statutes  of  limitation],  the  exceptions  to  them, 
and  the  acts  from  which  the  time  limited  shall  begin  to  run,  will  gen- 
erally depend  upon  the  sound  discretion  of  the  legislature,  according  to 
the  nature  of  the  titlea,  the  situation  of  the  country,  and  the  emergency 
which  leads  to  their  enactment.'  " 

1  Vance  v.  Vance,  108  U.  S.  514,  518;  Curtis  v.  Whitney,  13  Wal- 
lace, 68.     See  Priestly  v.  Watkins,  62  Miss.  798. 

2  3  Peters,  290. 

VOL.   II. — 5 


716  LIMITATION   OF  THE 

and  like  them  do  not  impair  the  obligation  of  the  contract. 
The  time  and  manner  of  their  operation,  the  exceptions  to 
them,  and  the  conditions  under  which  they  are  to  take 
effect,  depend  in  general  on  the  discretion  of  the  legisla- 
ture. Cases  may  occur  where  the  provisions  of  such  a  law 
are  so  unreasonable  as  to  be  an  annihilation  of  the  right ; 
but  the  case  before  the  court  is  not  one  of  them."  So  the 
legislature  may  require  mortgages  to  be  registered,  though 
no  such  rule  was  in  force  when  they  were  executed,  and 
provide  that  they  shall  be  invalid  against  purchasers  without 
notice  if  the  condition  be  not  fulfilled.^ 

In  Kenyon  v.  Stewart  ^  the  Supreme  Court  of  Pennsylvania 
cited  Jackson  v.  Lampshire  as  showing  incontestably  that 
a  State  might  retroactively  abridge  the  period  within  which 
the  probate  of  a  devise  of  real  estate  could  be  controverted 
in  an  ejectment  brought  for  the  land. 

The  rule  holds  good  after  judgment,^  and  in  McElmoyle  v, 
Cohen  a  statute  limiting  the  right  of  action  on  the  judg- 
ments of  other  States  to  five  years  after  they  were  pro- 
nounced, was  held  not  to  impair  the  obligation  of  the  contract, 
or  violate  the  constitutional  provisions  that  such  judgments 
"  shall  have  full  faith  and  credit."  In  the  Bank  of  Alabama  v. 
Dalton,*  an  act  of  the  Mississippi  legislature  providing  that 
suit  should  not  be  brought  on  the  judgments  of  other  States 
after  the  lapse  of  two  years,  was  held  to  be  a  defence, 
although  the  debtor  had  moved  into  Alabama  after  the 
period  of  limitation  had  expired,  with  a  view  to  getting  rid 
of  his  liability.  The  decision  went  on  the  ground  that  a 
State  may  regulate  antecedent  contracts,  as  well  as  sub- 
sequent, so  long  as  it  does  not  impair  the  obligation,  and 
that  while  Congress  could,  agreeably  to  the  Constitution 
of  the  United  States,  declare  the  effect  of  judgments,  they 
had  not  exercised  the  power. 

1  Vance  v.  Vance,  108  U.  S.  514,  517. 

2  4  Pa.  179. 

^  Bank  of  Alabama  v.  Dalton,  9  Howard,  522;  McElmoyle  v.  Cohen, 
13  Peters,  212;  2  American  Leading  Cases  (5tli  ed.),  pp.  603,  662. 
*  9  Howard,  522. 


EIGHT   OF   SUIT  ON  JUDGMENTS.  717 

The  right  of  the  legislature  to  limit  the  time  within  which 
suit  may  be  brought,  results  from  their  right  to  modify 
or  control  the  rules  of  evidence ;  and  both  powers  may  be 
exercised  retroactively  in  the  same  statute.  In  Korn  v, 
Brown,^  an  act  providing  that  whenever  no  payment  or  de- 
mand shall  have  been  made  for  or  on  account  of  a  ground- 
rent,  annuity,  or  other  charge  on  real  estate  for  the  space 
of  twenty  years,  such  charge  shall  be  presumed  to  have  been, 
released  or  extinguished,  was  held  valid,  though  operating 
retrospectively,  because  it  was  not  to  take  effect  until  three 
years  after  its  passage,  and  simply  laid  down  a  rule  of  evi- 
dence which  could  prejudice  no  one  save  through  his  own 
negligence.  The  lapse  of  twenty  years  raised  a  presumption 
at  common  law  as  against  a  bond,  and  the  legislature  might 
establish  a  like  rule  with  regard  to  other  obligations. 

Whether  the  bar  of  the  statute  of  limitations  can  be  re- 
moved after  it  has  attached,  is  a  different  question,  which 
should  seemingly  be  answered  in  the  negative,  because  the 
legislature  cannot  be  supposed  to  have  intended  that  the 
right  should  survive  the  extinction  of  the  remedy .^  A  statute 
authorizing  a  recovery  under  such  circumstances  is  therefore 
unconstitutional,  at  all  events  as  regards  the  title  to  land 
or  chattels;  but  the  reason  must  be  sought  in  the  amend- 
ment which  protects  vested  rights  from  deprivation  without 
due  process  of  law,  and  not  in  the  prohibition  of  laws  im- 
pairing the  obligation  of  contracts.^ 

1  64  Pa.  55. 

2  Moore  v.  The  State,  43  N.  J.  Law,  205;  Moore  v.  Luce,  29  Pa. 
262;  Baggs's  App.,  43  Pa.  512;  Leffingwell  v.  Warren,  2  Black,  559; 
Ball  u.  Wyeth,  99  Mass.  338;  Atkinson  v.  Dunlap,  50  Me.  111. 

8  See  Moore  v.  The  State,  43  N.  J.  Law,  205;  Maxwell  v.  Goetschius, 
11  Vroom,  383  ;  Davidson  v.  New  Orleans,  96  U.  S.  98. 


LECTURE  XXXII. 

Judicial  Legislation  necessary  and  beneficial.  —  It  may  impair  the  Obliga- 
tion of  Contracts  by  laying  down  New  Rules,  but  is  not,  where  it  does 
not  involve  the  Interpretation  of  a  Statute,  a  Law  in  the  Sense  of  the 
Constitutional  Prohibition.  —  In  considering  whether  a  Law  impairs 
the  Obligation  of  a  Contract,  the  Supreme  Court  of  the  United  States 
will  determine  for  itself  whether  the  Contract  is  void  or  valid.  —  The 
Statutes  of  a  State  are  what  they  are  declared  to  be  by  its  Courts, 
and  the  Interpretation  cannot  be  changed  injuriously  to  Intervening 
Contracts.  —  A  Law  passed  in  the  same  Terms  in  two  Different  States, 
but  differently  interpreted  by  their  Courts,  is  in  effect  two  Different 
Laws,  and  will  be  so  treated  by  the  Supreme  Court  of  the  United 
States.  —  A  Purchase  on  the  faith  of  an  Erroneous  Judgment  that  the 
Title  is  good  may  confer  a  Valid  Title.  —  A  Constitutional  Change  or 
Amendment  impairing  the  Obligation  of  Contracts  is  invalid. 

What  is  a  law  in  the  sense  of  the  Constitutional  pro- 
hibition ?  The  question  admits  of  an  obvious  reply  where 
it  arises  under  an  enactment  varying  the  pre-existing  statutory 
or  common  law  ;  but  there  are  cases  where  it  cannot  readily 
be  answered.  A  judgment  construing  or  interpreting  a 
grant  or  covenant,  and  determining  that  it  does  not  confer 
the  right  claimed  by  the  grantee  or  covenantee,  does  not 
ordinarily  impair  the  obligation  of  the  contract  within  the 
meaning  of  the  Constitution  of  the  United  States,  however 
widely  it  may  vary  from  the  opinion  generally  prevailing 
among  jurists,  or  that  previously  expressed  by  the  courts.^ 
The  appropriate  function  of  the  tribunals  is  jus  dicer e,  to 
declare  the  rule,  and  not  to  make  it;  and  the  law  will  be 
presumed  to  have  been  as  the  court  held,  although  the  con- 
trar}^  is  apparent.  Contracts  imposing  personal  obligations 
or   conferring   rights  of  property  are,  unless  some   federal 

1  Bank  v.  Burlingame,  5  Howard,  342;  Knox  v.  Exchange  Bank,  12 
Wallace,  379;  University  v.  The  People,  99  U.  S.  SOD. 


JUDGMENTS   ARE  NOT  LAWS.  719 

question  is  involved,  under  the  jurisdiction  of  the  States 
both  as  regards  the  duties  which  they  prescribe,  and  the 
rules  by  which  they  are  governed.  The  judgment  of  a  State 
tribunal,  that  a  contract  is  contrary  to  public  policy  or  good 
morals,  or  that  there  is  a  want  or  failure  of  consideration, 
may  be  erroneous,  but  it  is  none  the  less  the  law  by  which 
the  parties  must  abide,  and  which  must  be  applied  in  all 
similar  cases.  In  such  instances  the  national  tribunals  should 
follow  the  local  law,  and  be  guided  by  the  judges  to  whom 
the  task  of  interpretation  has  been  intrusted  by  the  people 
of  the  State  in  a  matter  where  their  will  is  supreme.^  But 
it  is  not  less  clear  that  the  safeguard  which  the  Constitution 
provides  for  contracts  is  obligatory  on  all  the  branches  of 
the  State  governments,  and  should  not  be  set  aside  or  evaded 
by  the  judiciary,  or  under  color  of  a  judgment  which,  though 
in  form  declaratory,  virtually  impairs  contractual  rights,  by 
introducing  novel  rules  or  abrogating  existing  remedies. 
When,  therefore,  the  question,  whether  the  obligation  of  a 
contract  has  been  impaired  by  subsequent  legislation,  is 
brought  before  the  Supreme  Court  of  the  United  States  by 
a  writ  of  error  to  a  State  tribunal,  the  entire  case  lies  open 
for  review,  and  it  is  necessary  to  consider  not  only  the 
operation  of  the  statute  on  the  contract,  but  whether  a  con- 
tract was  entered  into  and  imposed  the  obligation  which  is 
alleged  to  have  been  impaired.'-^  Such  was  the  course  pur- 
sued in  the  much-debated  controversy  as  to  the  effect  of 
the  statutory  exemptions  from  taxation  which  were  set  aside 
by  the  State  tribunals  as  invalid,  and  upheld  as  contracts 
by  the  court  of  last  resort.^     So  where  the  Constitution  of 

1  The  Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388,  392;  Chicago  Life 
Insurance  Co.  v.  Needles,  113  Id.  574,  582.     See  ante,  p.  535. 

2  Louisville  Gas  Co.  v.  Citizens'  Gas  Co.,  115  U.  S.  683,  697;  Louis- 
ville R.  R.  V.  Palmes,  109  Id.  254,  257. 

3  See  The  Bank  of  Toledo  v.  The  City  of  Toledo,  1  Ohio,  n.  s.  622; 
Thorpe  v.  The  Rutland  R.  R.  Co.,  27  Vt.  140;  Mott  v.  The  Penn- 
sylvania R.  R.  Co.,  30  Pa.  9;  The  Erie  R.  R.  Co.  v.  The  Common- 
wealth, 66  Id.  84;  15  Wallace,  282;  Knoup  v.  The  Piqua  Bank,  1  Ohio 
St.  603;  The  Jefferson  Bank  v.  Skelly,  1  Black,  436;  The  University 
V.  People,  99  U.  S.  309;   Keith  v.   Clark,  97  Id.  474. 


720  WHETHER   THE  CONTRACT  IS  BINDING 

Louisiana,  as  reconstructed  after  the  Rebellion,  declared  that 
contracts  made  during  the  civil  war,  and  payable  in  the  notes 
of  the  Confederacy,  were  invalid,  and  should  not  be  enforced, 
and  judgment  was  rendered  for  the  debtor  in  the  State  courts 
on  the  ground  that  such  contracts  were  against  public  policy 
and  void  ah  initio,  the  Supreme  Court  reversed  the  decision, 
notwithstanding  the  objection  that  what  contracts  are  obliga- 
tory and  what  void,  depends  on  the  local  law,  and  does  not 
present  a  case  under  the  Constitution  or  laws  of  the  United 
States.i 

It  results  from  this  decision  that  while  the  validity  of 
a  contract  made  and  to  be  performed  within  a  State  ordi- 
narily depends  upon  the  local  law,  and  does  not  involve  a 
federal  question,  the  case  is  essentially  different  where  the 
legislature  intervenes  to  narrow  or  take  away  the  remedies 
by  which  alone  it  can  be  enforced.  Two  points  may  then 
arise,  —  Does  the  statute  tend  to  impair  the  obligation  ? 
Was  the  contract  binding  under  the  pre-existing  law  ?  And 
in  determining  the  latter,  the  Supreme  Court  of  the  United 
States  will  be  guided  by  its  own  judgment,  and  not  by  that 
of  the  court  below.  Such  was  the  decision  in  The  Jefferson 
Bank  v.  Skell}^^  where  Wayne,  J.,  said  :  *'  It  has  never 
been  denied,  nor  is  it  now,  that  the  Supreme  Court  of  the 
United  States  has  an  appellate  power  to  revise  the  judgment 
of  the  Supreme  Court  of  a  State  whenever  such  a  court 
shall  adjudge  that  not  to  be  a  contract  which  has  been 
alleged,  in  the  forms  of  legal  proceedings,  by  a  litigant 
to  be  one  within  the  meaning  of  that  clause  of  the  Con- 
stitution'of  the  United  States  which  inhibits  the  States 
from  passing  any  law  impairing  the  obligation  of  contracts. 
Of  what  use  would  the  appellate  power  be  to  the  litigant 
who  feels  himself  aggrieved  by  some  particular  State  legis- 
lation, if  this  court  could  not  decide,  independently  of  all 
adjudication  by  the  Supreme  Court  of  a  State,  whether  or 
not  the  phraseology  of  the  instrument  in  controversy  was 
expressive  of  a  contract  and  within  the  protection  of  the 

1  Delmas  v.  Insurance  Co.,  14  Wallace,  661. 

2  1  Black,  443. 


IS  A   FEDERAL   QUESTION.  721 

Constitution  of  the  United  States,  and  that  its  obligation 
should  be  enforced,  notwithstanding  a  contrary  conclusion 
by  the  Supreme  Court  of  a  State?  It  never  was  intended, 
and  cannot  be  sustained  by  any  course  of  reasoning,  that 
this  court  should,  or  could  with  fidelity  to  the  Constitution 
of  the  United  States,  follow  the  construction  of  the  Supreme 
Court  of  a  State  in  such  a  matter,  when  it  entertained  a 
different  opinion ;  and  in  forming  its  judgment  in  such  a 
case  it  makes  no  difference  in  the  obligation  of  this  court 
in  reversing  the  judgment  of  the  Supreme  Court  of  a  State 
upon  such  a  contract  whether  it  be  one  claimed  to  be  such 
under  the  form  of  State  legislation,  or  has  been  made  by 
a  covenant  or  agreement  by  the  agents  of  a  State  by  its 
authority." 

In  these  instances  the  main  question  was  as  to  the  oper- 
ation of  a  retroactive  statute,  and  the  validity  of  the  contract 
was  considered  incidentally  ;  but  it  is  not  less  clear  that 
the  judiciary  cannot  impair  the  obligation  of  a  contract  by 
putting  a  manifestly  erroneous  interpretation  on  the  statutes 
under  which  the  contract  was  executed,  and  which  con- 
stitute its  obligation.  If,  for  instance,  the  highest  tribunal 
of  a  State  decides,  contrar}^  to  the  plain  intent  of  a  prior 
statute,  that  a  mandamus  cannot  be  issued  to  compel  a  mu- 
nicipal corporation  to  levy  and  collect  the  taxes  requisite 
for  the  payment  of  its  debts,  the  rights  of  the  creditors  are 
as  much  violated  as  if  the  statute  were  repealed,  and  the 
federal  tribunals  may  afford  redress.^  There  is  not,  in  the 
ordinary  sense  of  the  term,  a  law  impairing  the  obligation 
of  the  contract,  but  there  is  an  erroneous  interpretation  of 
the  law,  which  has  practically  the  same  effect. 

It  was  accordingly  decided  in  Butz  v.  Muscatine  that 
whether  the  remedy  is  taken  away  by  a  statute  or  by  a 
judgment  denying  what  the  statute  manifestly  provides,  the 
result  is  equally  at  variance  with  the  Constitution  of  the 
United  States,  and  the  error  should  be  corrected  by  ordering 
the  mandamus  to  go  forth.  The  Chief- Justice  and  Mr.  Justice 
Field  dissented,  on  the  ground  that  where  there  has  been 

1  Butz  V.  The  City  of  Muscatine,  8  Wallace,  583. 


722  THE   JUDICIAL  INTERPRETATION 

no  prior  decision,  and  the  statute  comes  before  the  State 
courts  for  the  first  time,  their  interpretation  must  be  regarded 
as  correct,  and  should  be  followed  by  the  federal  tribunals. 
'  Agreeably  to  this  decision,  a  judicial  misinterpretation  of  a 
statute  which  impairs  the  obligation  of  a  contract  made  in 
the  interval  between  the  passage  of  the  bill  and  the  delivery 
of  the  judgment,  is  a  law  in  the  sense  of  the  constitutional 
prohibition.  The  principle  would  seem  to  be  logically  as  ap- 
plicable to  an  erroneous  construction  of  the  common  law,  by 
holding  that  there  is  no  consideration  contrary  to  the  fact, 
or  that  a  valid  contract  is  illegal  or  against  public  policy ; 
but  agreeably  to  the  settled  course  of  federal  decision,  does 
not  go  so  idv} 

In  Butz  V.  Muscatine  the  case  depended  on  whether  the 
judgment  of  the  court  below  was  sound  ;  but  there  is  another 
phase  of  the  question,  in  which  it  may  be  the  duty  of  the 
Supreme  Court  .to  reverse  a  sound  judgment,  in  view  of 
another  which  was  pronounced  under  a  mistaken  interpre- 
tation of  the  law  or  contract.  For  if  the  law  is  defined, 
although  erroneously,  by  a  court  of  last  resort,  the  subsequent 
enunciation  of  a  different  rule  will  have  the  same  injurious 
effect  on  rights  acquired  during  the  interval  as  if  the  change 
were  legislative  instead  of  judicial.  It  follows  that  a  State 
court  cannot  impair  the  obligation  of  a  contract  which  has 
been  executed  on  the  faith  of  tlie  interpretation  which  it  has 
put  on  a  local  enactment  by  enunciating  a  new  or  incon- 
sistent rule.  It  is  immaterial,  as  regards  the  application  of 
this  principle,  that  the  former  decision  was  unsound,  and 
could  not  stand  the  test  of  legal  criticism,  because  it  was 
the  only  source  to  which  the  citizen  could  look  for  guidance.^ 
The  question  in  Louisiana  v.  Pilsbury  was,  could  the  Su- 
preme Court  of  Louisiana,  by  changing  the  view  which  it 
had  taken  of  a  statute,  invalidate  negotiable  bonds  which 
would  have  been  obligatory  had  the  former  judgment  been 
allowed  to  stand,  and  was  decided  negatively  on  the  follow- 

1  Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388,  394. 

2  See  Gilpecke  ?'.  Dubuque,  1  Wallace,  175;  Olcott  v.  The  Supervisors, 
16  Id.  678;  Louisiana  v.  Pilsbury,  105  U.  S.  278,  294. 


OF  A  STATUTE  IS  A  LAW.  723 

ing  grounds:  "Whether  the  construction  originally  placed 
upon  the  clause  of  the  Constitution  of  1845  was  or  was  not 
erroneous,  will  not  be  considered  in  determining  the  validity 
of  the  bonds.  The  exposition  given  by  the  highest  tribunal 
of  the  State  must  be  taken  as  correct,  so  far  as  contracts 
made  under  the  act  are  concerned.  Their  validity  and  ob- 
ligation cannot  be  impaired  by  any  subsequent  decision  alter- 
ing the  construction.  This  doctrine  applies  as  well  to  the 
construction  of  a  provision  of  the  organic  law  as  to  the  con- 
struction of  a  statute.  The  construction,  so  far  as  contract 
obligations  incurred  under  it  are  concerned,  constitutes  a 
part  of  the  law  as  much  as  if  embodied  in  it.  So  far  does 
this  doctrine  extend  that  when  a  statute  of  two  States,  ex- 
pressed in  the  same  terms,  is  construed  differently  by  the 
highest  courts,  they  are  treated  by  us  as  different  laws,  each 
embodying  the  particular  construction  of  its  own  State,  and 
enforced  in  accordance  with  it  in  all  cases  arising  under  it.^ 
The  statute,  as  thus  expounded,  determines  the  validity  of 
all  contracts  under  it.  A  subsequent  change  in  its  inter- 
pretation can  affect  only  subsequent  contracts.  The  doc- 
trine on  this  subject  is  aptly  and  forcibly  stated  by  the 
Chief- Justice  in  the  recent  case  of  Douglass  v.  County  of 
Pike: 2  'The  true  rule  is  to  give  a  change  of  judicial 
construction,  in  respect  to  a  statute,  the  same  effect  in  its 
operation  on  contracts  and  existing  contract  rights  that 
would  be  given  to  a  legislative  amendment ;  that  is  to  say, 
make  it  prospective,  not  retroactive.  After  a  statute  has 
been  settled  by  judicial  construction,  the  construction  be- 
comes, so  far  as  contract  rights  acquired  under  it  are  con- 
cerned, as  much  a  part  of  the  statute  as  the  text  itself ; 
and  a  change  of  decision  is  to  all  intents  and  purposes  the 
same  in  its  effect  on  contracts  as  an  amendment  of  the 
law  by  means  of  a  legislative  enactment.'  "  ^ 

1  Christy  v.  Pridgeon,  4  Wallace,  196,  and  Shelby  r.  Guy,  11  Wheaton, 
361. 

2  101  U.  S.  677,  687. 

8  It  is  said  in  The  Lehigh  AVater  Co.  v.  Easton,  121  U.  S.  388,  that  a 
prohibition  of  laws  impairing  the  obligation   of  contracts  necessarily 


724  THE  INTERPRETATION  MUST  NOT  BE 

The  rule  applies,  not  only  as  between  the  original  parties, 
but  in  favor  of  third  persons  who  buy  on  the  faith  of  a 
decision  that  a  bond  payable  to  bearer  or  other  negotiable 
instrument  has  been  duly  issued  and  will  confer  a  valid 
title  and  may  render  the  instrument  obligatory  in  their 
favor,  although  it  would  have  been  void  in  the  hands  of 
the  first  taker.i  In  Thompson  v.  Perrine,^  municipal  bonds 
which  had  been  illegally  issued  were  ratified  by  an  act  of 
the  State  legislature,  approved  April  28,  1871,  and  subse- 
quently purchased  by  the  plaintiff,  while  the  courts  of  New 
York  held  that  such  defects  might  be  cured  by  retrospective 
legislation  ;  and  it  was  decided  that  the  Court  of  Appeals 
could  not,  by  changing  its  ground  and  declaring  the  con- 
firmatory act  unconstitutional,  defeat  a  title  which  had  been 
acquired  in  reliance  on  the  previous  decisions  of  the  same 
tribunal.^ 

The  authorities  are  sximmed  up  in  tho  following  extract 

refers  to  laws  made  after  the  contract  in  suit;  but  in  applying  this  rule 
it  must  be  remembered  that  the  judicial  interpretation  ot  a  statute  is  a 
law  relatively  to  past  as  well  as  future  contracts,  whether  they  were  made 
before  or  subsequently  to  the  statute. 

1  See  ante,  p.  586. 

2  103  U.  S,  9,  10;  93  Id.  806. 

8  "  The  defendant  in  error  acquired  the  bonds  in  suit  in  1875,  before 
the  decision  in  Horton  v.  The  Town  of  Thompson,  and  when,  according 
to  the  principles  announced  in  The  Town  of  Duanesburgh  v.  Jenkins 
and  many  prior  cases  in  the  Court  of  Appeals,  the  act  of  1871  must  have 
been  sustained  as  an  exercise  of  legislative  power.  He  purchased  them 
for  value  at  public  auction  in  the  city  of  New  York,  without  notice  of 
any  defence  thereto,  or  of  the  pendency  of  any  suit  involving  their 
validity.  If  the  recitals  in  the  bonds  gave  notice  that  the  acts  of  1868 
and  1869  forbade  their  exchange  for  stock,  and  required  them  to  be  sold, 
and  their  proceeds  invested  in  siich  stock,  the  purchaser  is  also  presumed 
to  have  known,  not  only  that  such  exchange  had  been  legalized  by  the 
act  of  1871,  but  that  the  authority  of  the  legislature  to  pass  that  act 
was  sustained  by  decisions  of  the  highest  court  of  the  State  rendered 
prior  to  its  passage.  This  right  should  not,  therefore,  be  affected  by 
a  decision  rendered  after  it  accrued,  which  decision  is  in  conflict  with 
the  law  as  declared  not  only  by  this  court  in  numerous  instances,  but 
by  the  highest  court  of  the  State  at  and  before  the  time  he  purchased 
the  bonds." 


CHANGED   AS  TO   PAST  CONTRACTS.  725 

from  the  judgment  in  Taylor  v,  Ypsilanti :  i  " '  The  sound 
and  true  rule,'  said  Taney,  C.-J.,  in  Ohio  Life  Insurance  Co. 
V.  Debolt,2  *  is  that  if  the  contract  when  made  is  valid  by 
the  laws  of  the  State,  as  then  expounded  by  all  the  depart- 
ments of  its  courts  of  justice,  its  validity  and  obligation 
cannot  be  impaired  by  any  subsequent  act  of  the  legislature 
of  the  State  or  decision  of  its  courts  altering  the  construction 
of  the  law.'  So  in  The  City  v.  Lamson,^  Mr.  Justice  Nelson, 
speaking  for  the  court,  said :  '  It  is  urged  also  that  the 
Supreme  Court  of  Wisconsin  has  held  that  the  act  of  the 
legislature  conferring  authority  upon  the  city  to  lend  its  credit 
and  issue  the  bonds  in  question  was  in  violation  of  the  pro- 
visions of  the  Constitution  above  referred  to.  But  at  the 
time  this  loan  was  made  and  these  bonds  were  issued,  the 
decisions  of  the  courts  of  the  State  favored  the  validity  of 
the  law.  The  last  decision  cannot,  therefore,  be  followed.' 
Again,  in  Olcott  v.  The  Supervisors,*  the  court,  speaking 
through  Mr.  Justice  Strong,  said:  'This  court  has  always 
ruled  that  if  a  contract  when  made  was  valid  under  the  Con- 
stitution and  laws  of  a  State  as  they  had  been  previously 
expounded  by  its  judicial  tribunals  and  as  they  were  under- 
stood at  the  time,  no  subsequent  action  by  the  legislature  or 
the  judiciary  will  be  regarded  by  this  court  as  establishing 
its  invalidity.'  To  the  like  effect  are  some  very  recent  de- 
cisions of  this  court,  —  Douglass  v.  County  of  Pike,^  Thomp- 
son V.  Perrin."  ^ 

The  term  *'  laws  "  used  in  this  opinion  is  broad  enough  to 
include  every  rule  of  property  or  conduct  which  is  obligatory 
and  may  be  judicially  enforced,  whether  it  is  laid  down  by 
the  legislature,  enunciated  by  the  courts,  or  handed  down 
traditionally  from  the  past ;  but  we  may  infer  from  the  con- 
text, and  the  language  held  in  Delmas  v.  The  Insurance  Co.,^ 
that  it  was  employed  in  the  narrower  sense  in  which  law  is 
synonymous  with  statute,  and  that  a  judgment  or  decree  of  a 

1  105  U.  S.  7.  -  6  101  U.  S.  677. 

2  16  Howard,  416,  432.  «  103  U.  S.  806. 

«  9  Wallace,  477,  485.  '  14  Wallace,  661. 

*  16  Wallace,  678. 


726  RETROACTIVE  JUDICIAL  LEGISLATION. 

State  tribunal  declaring  a  contract  void  on  general  principles 
of  policy  or  morals  cannot,  when  such  are  the  only  grounds, 
be  reviewed  by  the  Supreme  Court  of  the  United  States, 
even  for  the  sake  of  vindicating  the  obligation  against  what 
is  in  effect  judicial  legislation.  The  law  is  now  settled  on 
this  basis,^  but  the  principle  would  seem  to  be  logically  ap- 
plicable wherever  a  contract  which  is  valid  agreeably  to  the 
doctrine  of  a  prior  judgment  is  set  aside  by  a  decision  which 
introduces  a  new  and  different  rule ;  and  there  are  cases 
which  approach,  if  they  do  not  fully  cover,  this  ground.^ 
The  rule  as  laid  down  in  Olcott  v.  The  Supervisors  ^  is  that 
if  a  contract  when  made  is  binding  under  the  Constitution 
and  laws  of  a  State  as  they  have  been  expounded  by  its  tri- 
bunals and  as  they  were  understood  at  the  time,  no  subse- 
quent action  by  the  legislature  or  the  judiciary  can  render 
it  invalid  ;  and  any  law  or  judgment  which  produces  such 
an  effect  will  be  disregarded  by  the  Supreme  Court  of  the 
United  States.  It  follows  that  where  the  construction  of 
a  railroad  by  a  company  incorporated  for  that  end  has  been 
judicially  treated  as  a  public  use  which  warrants  the  taking 
of  land,  the  courts  cannot,  by  shifting  their  ground  and 
denying  it  that  character,  invalidate  municipal  bonds  that 
have  been  issued  with  a  view  of  aiding  the  company  in  the 
prosecution  of  the  work. 

Some  of  the  above  judgments  go  so  far  that  they  should 
consistently  be  carried  farther.  If  when  the  legislature  have 
explicitly  declared  their  will,  we  are  to  look  for  the  rule 
in  the  interpretation  given  by  the  courts,  however  widely  it 
may  vary  from  the  language  of  the  statute,  and  though  it 
leads  to  contradictory  results,  such,  for  a  stronger  reason, 
should  be  the  effect  of  a  judicial  exposition  of  the  customary 
or  unwritten  law,  which  varies  in  different  countries,  and 
even  in  provinces  ruled  by  the  same  sovereign.  Yet,  agree- 
ably to  the  view  taken  by  the  Supreme  Court  of  the  United 
States,  the  rules  laid  down  by  the  State  tribunals  with  regard 

1  The  Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388,  392.  See  ante, 
p.  719. 

2  See  Menges  v.  Dentler,  33  Pa.  495.  «  18  Wallace,  678. 


EETROACTIVE  JUDICIAL  LEGISLATION.  727 

to  bills,  notes,  policies  of  insurance,  and  other  written  instru- 
ments, with  the  general  acquiescence  that  gives  custom  to 
the  force  of  law,  may  be  disregarded  by  the  federal  courts, 
although  the  question  is  one  where  there  is  room  for  a  differ- 
ence of  opinion,  and  precedent  is  the  only  certain  guide  ; 
and  the  effect  is  to  impair  the  obligation  of  contracts  which 
have  been  made  in  the  belief  that  the  course  of  decision  would 
not  be  changed.^  The  State  courts  are  thus  placed  in  an 
embarrassing  dilemma,  and  may  have  to  choose  between  the 
conflict  of  jurisdiction  incident  to  discordant  rules  adraininis- 
tered  by  co-ordinate  tribunals,  and  impairing  the  obligation 
of  contracts  that  have  been  made  on  the  faith  of  their  own 
decisions  in  deference  to  the  opinion  of  the  national  court 
of  last  resort  in  matters  where  it  is  not  authorized  to  give  the 
law.  Were  Congress  to  exercise  such  a  control,  the  statute 
would  be  set  aside  as  unconstitutional,  in  trenching  on  the 
purely  internal  commerce  which  is  reserved  to  the  States.^ 
And  the  principle  is  the  same  where  the  effect  is  produced 
through  a  judgment  of  the  Supreme  Court  instead  of  an 
act  of  Congress. 

The  first  indication  of  a  principle  which  has  since  borne 
unexpected  fruits  may  be  found  in  Menges  v.  Dentler,^  which 
decided  that  when  the  title  to  a  tract  of  land  has  been 
erroneously  adjudged  to  be  good,  and  value  is  given  on  the 
faith  of  the  decree,  the  court  cannot  retrace  its  steps  to 
the  injury  of  the  purchaser  whom  it  has  misled.  The  ques- 
tion arose  under  the  following  circumstances.  Land  owned 
by  Menges  was  sold  by  the  sheriff  under  an  execution  against 
him,  and  conveyed  to  the  purchaser  ;  and  it  was  held  that  the 
proceeding  was  irregular  and  did  not  pass  the  title,  because 
the  premises  were  situated  in  another  bailiwick  and  beyond 
the  jurisdiction  of  the  court.     An  act  of  assembly  was  then 

1  See  Gates  v.  The  National  Bank,  100  U.  S.  245;  The  Railroad  Co. 
V.  The  National  Bank,  102  Id.  14;  Swift  v.  Tyson,  16  Peters,  1;  Car- 
penter V.  The  Providence  Insurance  Co.,  Id.  495;  Brooke  v.  The  Rail- 
road Co  ,  108  Pa.  537.     See  ante,  pp.  443-445,  495. 

2  See  ante,  p.  444. 
»  33  Pa.  495. 


728   A  PURCHASE  ON  THE  FAITH  OF  A  JUDGMENT 

passed  to  cure  the  defect,  and  sustained  by  the  Supreme 
Court  of  Pennsylvania  on  the  ground  that  as  the  proceeds 
of  the  execution  had  gone  to  pay  Menges's  debts,  he  was 
under  a  moral  obligation  to  ratify  the  sale  ;  and  the  legis- 
lature might  well  add  a  legal  sanction.^  Dentler  subse- 
quently bought  the  land  on  the  faith  of  this  decree,  and  the 
question  was  again  argued  before  the  same  tribunal ;  which 
was  of  opinion  that  tlie  former  decision  was  erroneous,  and 
the  statute  invalid,  but  that  the  error  could  not  justly  be 
corrected  as  against  a  purchaser  who  had  given  value  in 
reliance  on  an  adjudication  by  the  department  of  the  gov- 
ernment which  is  charged  with  the  administration  of  justice, 
and  might  equitably  retain  what  he  had  honestly  acquired. 

The  ejectment  was  brought  in  this  case  for  the  very  prem- 
ises which  had  been  in  controversy  in  Menges  v.  Wertman  ;^ 
but  a  purchaser  whose  title  depended  on  the  power  of  the 
legislature  to  give  legal  efficacy  to  a  naked  moral  obligation 
to  convey,  would  have  been  equally  entitled  to  protection, 
though  the  land  was  not  the  same.  For  as  the  rules  laid 
down  by  the  tribunals  of  last  resort  are,  from  the  necessity 
of  the  case,  law  until  they  are  abrogated  by  the  legislature 
or  overruled,  judicially,  so  they  enter  into  and  form  part 
of  the  obligation  of  contracts  made  while  they  are  still  in 
force.  The  case  turned  on  the  interpretation  and  validity  of 
a  statute;  but  the  principle  would  have  been  the  same  had 
the  prior  decision  rested  solely  on  the  duty  growing  out  of 
the  application  of  the  proceeds  of  the  sale  to  the  payment 
of  the  debts  of  the  party  who  sought  to  set  it  aside. 

There  can  be  little  doubt  that  judgments  are,  as  this  de- 
cision implies,  so  far  legislative  that  they  cannot  justly  be 
overruled  without  a  reservation  of  rights  which  have  been 
acquired  in  the  belief  that  they  will  stand.  Whatever  care 
may  be  taken  to  keep  the  functions  of  government  separate, 
it  is  neither  wise  nor  practicable  to  prevent  the  judiciary  from 
legislating.^    The  development  of  English  like  that  of  Roman 

1  See  Menges  v.  Wertman,  1  Pa.  218. 

2  1  Pa.  218. 

3  See  M'Clure  v.  Foreman,  4  W.  &  S.  279,  280. 


CANNOT  BE  SET  ASIDE  RETROACTIVELY.  729 

law  is  due  to  the  jurists  by  whom  it  has  been  practised  or 
administered,  rather  than  to  the  positive  enactments  which 
are  generally  known  as  laws.  It  was  well  said  by  De  Lolme 
that  the  Court  of  Chancery  operated  as  an  experimental  leg- 
islature in  laying  down  rules  and  maxims  which  were  sub- 
sequently tested  by  experience,  and  not  infrequently  adopted 
by  Parliament  or  the  courts  of  law ;  and  no  inconsiderable 
part  of  the  common  law  has,  as  in  the  noted  instance  of 
Taltarum's  case,^  been  introduced  or  formulated  from  the 
Bench,  In  like  manner,  much  of  what  is  novel  and  distinc- 
tive in  American  jurisprudence  is  judge-made  law;  and  if 
the  effect  has  sometimes  been  to  impair  the  obligation  of  con- 
tracts by  imposing  rules  which  were  unknown  until  they 
were  promulgated,  the  benefit  outweighs  the  inconvenience. 
Such  is  the  extent  of  the  judicial  power  in  this  regard  that 
it  may  modify  or  virtually  supersede  the  legislative.  The 
interpretation  given  to  a  statute  by  the  courts  is  as  much  a 
part  of  the  enactment  as  the  text  itself ;  and  if  two  statutes 
couched  in  the  same  terms  in  two  separate  States  are  con- 
strued differently  by  the  courts  of  last  resort,  they  will  be 
different  laws,  and  so  treated  by  the  Supreme  Court  of  the 
United  States.^ 

In  Irwin's  Appeal,'"^  the  Supreme  Court  of  Pennsylvania 
decided  that  a  covenant  to  pay  a  rent  reserved  in  fee  does 
not  bind  the  executors  of  the  covenantor,  and  thus  not  merely 
withheld  the  redress  to  which  the  plaintiff  was  entitled  under 
the  generally  received  interpretation  of  the  pre-existing  law, 
but  laid  down  retroactively  a  rule  which  took  away  the  rem- 
edy against  the  covenantor's  estate  in  other  cases  of  the  same 
kind.  So  the  rule  that  no  one  shall  recover  for  an  injury  re- 
sulting from  the  negligence  of  the  engineer  of  a  locomotive 
at  a  railroad-crossing  unless  he  stopped,  looked,  and  listened 
before  venturing  on  the  track,  was  judicially  established  in 
the  North  Pennsylvania  R.  R.  Co.  v,  Heilman,  and  defeated 

1  12  Edw.  IV.  19.  . 

1  Christy  v.  Pridgeon,  4  Wallace,  196;  Louisiana  v.  Pilsbury,  105  U.  S. 
278,  294.     See  ante,  p.  723. 

2  22  Pa.  510. 


730  RETROACTIVE  JUDICIAL  LEGISLATION". 

existing  claims  that  were  generally  regarded  as  valid.^  In 
like  manner,  a  guaranty  may  be  judicially  impaired  by  hold- 
ing, under  a  mistaken  view  of  the  mercantile  law,  that  the 
creditor  must  push  the  principal  debtor  to  insolvency,  or 
make  a  demand  on  him  and  give  notice  of  his  default  before 
suing  the  guarantor.^  Whether  a  novel  rule  precluding  a 
recovery  on  an  antecedent  contract,  unless  some  act  is  done 
which  is  not  required  by  its  terms,  be  imposed  by  the  legis- 
lature or  laid  down  retroactively  by  a  court,  there  is,  as  the 
language  of  Taney,  C.-J.,  in  the  Ohio  Life  Insurance  Co. 
V.  Debolt^  implies,  an  equal  disregard  of  the  constitutional 
prohibition.  ^ 

The  principle  of  Menges  v.  Dentler  has  nevertheless  been 
disregarded  in  cases  where  it  should  seemingly  have  been 
applied.  Agreeably  to  Lancaster  v.  Dolan,^  which  was  de- 
cided as  far  back  as  1829,  a  feme  covert  was  powerless  in 
Pennsylvania  to  convey  property  which  had  been  settled  to 
her  separate  use,  and  could  neither  sell  nor  mortgage  unless 
expressly  authorized  by  the  deed  or  will  through  which  she 
acquired  her  title.  The  judgment  was  contrary  to  the  rule 
in  England  and  New  York,  and  a  surprise  to  no  inconsider- 
able part  of  the  profession.  It  was  subsequently  held,  in 
Cummings's  Appeal,^  that  the  act  of  1848  had  worked  a 
radical  change  in  the  condition  of  a  feme  covert^  and  that  she 
might  dispose  of  her  separate  estate  as  if  she  were  sole ;  and 
in  Haines  v.  Ellis  ^  the  court  held,  agreeably  to  this  opinion, 
that  a  conveyance  of  the  separate  property  of  a  married 
woman  conferred  a  title  which  was  not  only  valid,  but  free 
from  every  reasonable  doubt.  This  judgment  was  rendered 
in  1853;  but  when  a  mortgage  executed  in  1858  came  before 
the  same  court  in  1860,  that   tribunal  virtually  overruled 

^  See  the  Hanover  R.  R.  Co.  v.  Coyle,  55  Pa.  396;  The  Pennsylvania 
R.  R.  Co.  V.  Beale,  73  Id.  504. 

2  See  Douglass  v.  Reynolds,  7  Peters,  113;  12  Id.  497;  Douglas  ». 
Rowland,  24  Wend.  35;  Powers  v.  Bumcratz,  12  Ohio  St.  275,  290; 
2  American  Leading  Cases  (5th  ed.),  104,  115,  118. 

8  16  Howard,  416,  431. 

*  See  Keith  v.  Clark,  97  U.  S.  454.  «  1  Jones,  275- 

6  1  Rawle,  231.  ^  24  Pa.  253. 


BETROACTIVB  JUDICIAL  LEGISLATION.  731 

Haines  v.  Ellis  without  citing  it,  and  declared  that  the  act 
of  1848  had  no  bearing  on  the  controversy,  which  was  gov- 
erned by  the  doctrine  of  Lancaster  v.  Dolan.^  The  question 
arose  not  long  afterwards  in  Wright  v.  Brown,^  and  was  de- 
termined in  the  same  way,  without  adverting  to  Menges  v. 
Dentler,  on  which  the  court  below  had  relied  in  giving  judg- 
ment. Such  a  result  is  the  less  explicable  because  no  case 
could  well  be  fairer  for  the  application  of  the  rule  that  pur- 
chasers who  are  misled  by  a  judicial  decision  shall  not  suffer 
from  an  error  for  which  they  are  not  responsible.  Although 
the  parties  and  the  estate  were  different,  the  case  was  iden- 
tical in  principle  with  Haines  v.  Ellis,  and  within  the  rule 
which  was  there  laid  down  as  embracing  every  such  transac- 
tion. All  the  elements  of  a  contract  were  present,  —  assent, 
a  consideration,  and  the  forms  prescribed  by  law;  and  the 
highest  authority  in  the  State  had  declared  such  contracts 
valid.  Yet  the  mortgagee  was  not  allowed  the  benefit  of  the 
doctrine  that  the  judiciary  no  more  than  the  legislature  can 
change  the  law  retroactively  to  the  injury  of  purchasers,  and 
lost  a  security  which  a  conveyancer  would  have  pronounced 
undeniable.  The  mortgage  in  this  instance  was  for  an  ante- 
cedent debt ;  but  the  remark  does  not  apply  to  Shonk  v. 
Brown,^  which  was  decided  with  a  like  disregard  of  the  rule 
that  obligations  depend  on  the  law  under  which  they  are 
incurred,  and  if  they  stand  that  test,  cannot  be  impaired 
retroactively.  These  decisions  would  presumably  have  been 
reversed  had  a  writ  of  error  been  taken  to  the  Supreme  Court 
of  the  United  States,  A  mortgage  is  not  less  a  contract,, 
within  the  doctrine  of  Fletcher  v.  Peck,  than  a  bond,  and 
the  decision  that  the  act  of  1848  authorized  married  women 
to  deal  with  their  separate  property  as  if  they  were  sole^  was 
as  much  a  part  of  the  statute,  agreeably  to  Louisiana  v. 
Pilsbury,*  as  if  it  had  been  incorporated  with  it  by  the  legis- 
lature, and  could  not  be  overruled  to  the  prejudice  of  grants 
or  contracts  made  during  the  interval. 

1  The  Pennsylyania  Co.  r.  Foster,  35  Pa.  134. 

2  44  Pa.  224. 

»  61  Pa.  320.  *  105  U.  S.  278. 

VOL.   II.  —  6 


732  CONTRACTS   CANNOT  BE  IMPAIRED 

The  organic  laws  of  the  various  States  are  self-imposed 
restraints  which  may  be  laid  aside  at  pleasure,  and  do  not  pre- 
clude the  citizens  of  a  State  from  acting  in  their  sovereign 
capacity  as  they  think  proper.  The  Constitution  of  a  State 
may  consequently  be  abrogated,  and  with  it  the  safeguards 
which  it  affords  to  liberty,  property,  and  contracts.  On  the 
other  hand,  the  Constitution  of  the  United  States  is  binding 
on  a  State  as  an  organic  whole,  and  will  no  more  permit  the 
obligation  of  a  contract  to  be  impaired  by  an  amendment  of 
the  State  Constitution  than  by  a  statute.  The  object  was  to 
protect  contracts  against  retroactive  legislation  ;  and  the  term 
"  law  "  is  broad  enough  to  include  every  rule  of  property  or 
conduct  enacted  by  the  sovereign  power  of  a  State  or  by  virtue 
of  an  authority  which  it  has  conferred ;  and  hence,  whether 
an  antecedent  obligation  is  impaired  by  the  people,  the  legis- 
lature, the  judiciary,  or  the  executive,  the  federal  tribunals 
may  afford  redress.^ 

In  Dodge  v.  Woolsey,^  the  Commercial  Bank  of  Cleveland 
was  incorporated  by  the  legislature  of  Ohio  in  1845  with  a 
stipulation  that  it  should  not  be  taxed  beyond  a  certain  limit. 
A  new  constitution,  adopted  in  1851,  provided  that  the  capi- 
tal employed  in  banking  should  bear  a  burden  of  taxation 
equal  to  that  imposed  on  individuals ;  and  it  was  contended 
that  the  people  of  a  State  had  an  indefeasible  right  to  change 
the  framework  of  their  government,  and  might  revoke  the 
powers  which  they  had  conferred  on  the  legislature,  and  with 
them  every  derivative  right  or  title.  In  accepting  the  char- 
ter the  bank  knew  that  the  Constitution  of  Ohio  might  be 
amended,  and  that  if  it  were,  all  rights  derived  through  it 
would  fall.  This  argument  was  overruled  by  the  Supreme 
Court  of  the  United  States  as  contrary  to  the  true  intent  of 
the  Federal  Constitution,  and  tending  to  a  conclusion  which 
would  enable  the  people  of  a  State  to  impair  the  obligation 

1  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650,  672; 
Skelly  V.  The  Sandusky  Bank,  1  Black,  436;  Delmas  v.  The  Insurance 
Co.,  14  Wallace,  661;  Woodruff  t\  Trapnell,  10  Howard,  190;  Keith  ». 
Clark,  97  U.  S.  454;  The  People  v.  The  Soldiers'  Home,  95  111.  561. 

2  18  Howard,  331. 


BY  A  CONSTITUTIONAL  AMENDMENT.  733 

of  contracts  by  substituting  a  plebiscitum  or  the  decree  of  a 
convention  for  the  ordinary  forms  of  legislation. 

A  like  decision  was  made  in  the  Northwestern  University 
V.  The  People  of  Illinois.^  The  Constitution  of  that  State, 
as  amended  in  1870,  declared  that  only  such  property  should 
be  exempt  from  taxation  as  was  used  exclusively  for  school, 
charitable,  or  religious  purposes ;  and  it  was  held  that  this 
provision,  and  a  statute  passed  to  carry  it  into  effect,  were 
unavailing  as  against  a  stipulation  in  an  antecedent  charter 
that  all  the  property  of  the  Northwestern  University  should 
be  forever  free  and  exempt. 

It  is  immaterial,  as  regards  the  application  of  the  princi- 
ple, that  the  constitutional  amendment  is  based  on  the  as- 
sumption that  the  contract  has  inherent  defects  and  should 
be  vacated  as  contrary  to  public  policy  or  good  morals,  and 
that  the  Supreme  Court  of  the  State  took  the  same  view  in 
delivering  judgment,  because  it  will  still  be  for  the  Supreme 
Court  of  the  United  States  to  consider  whether  the  alleged 
defect  is  real,  and  not  suffer  the  contract  to  be  retroactively 
impaired  on  grounds  which  have  no  foundation.  It  was 
accordingly  held  in  Delmas  v.  The  Insurance  Co.^  that  as 
contracts  payable  in  the  notes  of  the  Confederate  States,  or 
into  which  such  notes  entered  as  the  consideration,  were 
not  necessarily  illegal,  and  a  State  could  not  set  them  aside 
by  amending  its  Constitution,  so  a  judgment  of  the  Su- 
preme Court  of  the  State  based  on  such  grounds  must  be 
reversed. 

1  86  HI.  141;  99  U.  S.  309-  »  14  Wallace,  661. 


LECTURE  XXXIII. 

The  Obligation  of  a  Grant  may  be  impaired  by  taking  the  Land  from  the 
Grantee  and  transferring  it  to  a  Third  Person.  —  Retroactive  Legis- 
lation is  not  necessarily  invalid,  even  when  the  Effect  is  to  defeat  Pre- 
existing Rights.  —  Confirming  an  Invalid  Deed  or  Contract  does  not 
contravene  the  Constitutional  Prohibition,  although  the  Grantor  is 
thereby  obliged  to  surrender  what  he  might  otherwise  legally  have 
retained.  —  Distinction  between  Defences  given  for  the  Public  Good 
and  for  the  Protection  of  Individuals.  —  A  Defective  Acknowledgment 
may  be  rendered  valid  retroactively.  —  Contracts  voidable  for  Fraud 
or  Breach  of  Condition  may  not,  and  Contracts  which  are  defective  in 
Form  or  Consideration  may,  be  confirmed  legislatively. 

Can  property  be  taken  from  the  owner  and  bestowed  on 
a  third  person,  or  appropriated  without  compensation  to  a 
public  use,  consistently  with  the  prohibition  of  ex  post  facto 
laws  and  laws  impairing  the  obligation  of  contracts  ?  This 
question  has  frequently  been  mooted  in  the  courts,  and  not 
always  answered  in  the  same  way.  A  law  divesting  the  title 
of  a  grantee  and  reinstating  the  grantor,  obviously  impairs 
the  obligation  by  enabling  the  latter  to  resume  what  he  has 
agreed  to  part  with.  Accordingly,  the  legislature  cannot 
take  back  the  property  or  franchises  which  it  has  conferred 
on  a  body  corporate  or  an  individual,  even  when  the  grant 
is  statutory,  and  might  be  repealed  if  it  were  not  a  contract, 
or  although  the  allegation  is  that  the  act  was  procured  by 
bribery  or  fraud.  If  such  a  question  is  to  be  raised,  it  must 
be  in  the  courts  of  law,  and  through  an  ejectment,  quo 
warranto^  or  other  writ  framed  for  such  a  purpose.^  So 
the  Constitution  is  clearly  violated  by  a  law  exonerating  the 
vendor  of  a  chattel  from  the  obligation  to  deliver  the  thing 
sold,  or  declaring  the  bill  of  sale  which  he  has  executed  null 
and  void.     But  while  it  has  uniformly  been  conceded  that 

1  Fletcher  v.  Peck,  6  Cranch,  86. 


WHAT  IMPAIRS  A  GRANT.  735 

a  State  may  not  annul  the  title  af  a  purchaser  or  those  claim- 
ing under  him,  and  revest  it  in  the  grantor,  it  was  intimated 
in  some  of  the  earlier  decisions  that  there  is  nothing  in  the 
Constitution  of  the  United  States,  as  originally  framed,  to 
preclude  a  State  from  stripping  one  man  of  his  light  or  title 
for  the  purpose  of  conferring  it  on  another  who  is  a  stranger 
to  the  grant  or  contract  out  of  which  it  arose .^  In  other 
words,  it  is  not  the  taking  of  the  property  from  the  grantee, 
but  the  restoration  of  it  to  the  grantor,  contrary  to  the  terms 
of  his  agreement,  which  violates  the  obligation  and  brings 
the  case  within  the  constitutional  prohibition. 

This  would  seem  to  be  a  narrow  construction,  calculated 
to  defeat  the  object  which  the  framers  of  the  Constitution 
had  in  view.  The  title  to  real  estate  may  ordinarily  in  the 
United  States,  and  always  in  Pennsylvania,  be  traced  back 
to  an  express  or  implied  grant  from  the  State;  and  when 
such  is  the  case,  the  State  obviously  cannot  resume  what  it 
gave  without  a  breach  of  faith,  whether  the  property  is 
appropriated  to  its  own  use  or  bestowed  on  a  third  person. 
The  argument  is  less  convincing  when  the  right  is  not 
derived,  mediately  or  directly,  from  a  public  source,  or  as 
applied  to  chattels ;  but  it  may  still  be  said  that  when 
property  which  A  has  sold  to  B  is  restored  to  A,  it  is  the 
spoliation  of  B's  right,  and  not  the  benefit  conferred  on 
A,  which  impairs  the  grant,  and  that  it  would  be  equally 
impaired  if  the  legislature  were  to  dispossess  B  without 
returning  the  goods  or  land  to  A,  or  appropriate  them  without 
compensation  to  a  public  use. 

Whether  such  an  exercise  of  despotic  will  does  or  does 
not  impair  the  obligation  of  the  grant  considered  as  a  con- 
tract, it  should  be  treated  as  ex  post  facto  and  invalid, 
although  the  object  be  not  punishment,  but  spoliation  or  the 
attainment  of  some  personal  or  political  end.^     This  view  is- 

1  See  Harvey  v.  Thomas,  10  Watts,  63,  66;  Sharpless  v.  The  Mayor  of 
Philadelphia,  21  Pa.  147,  165,  167;  Grim  v.  The  Weissenberg  School 
District,  57  Id.  433,  436. 

2  See  ante,  p.  548;  Grim  v.  The  Weissenberg  School  District,  57  Pa. 
433,  436;  Palairet's  Appeal,  67  Id.  479. 


736  A  STATUTORY  GRANT  CANNOT 

to  a  great  extent  sustained  by  the  case  of  Fletcher  v,  Peck.^ 
The  question  there  considered  was  the  validity  of  an  act  of 
the  legislature  of  the  State  of  Georgia,  declaring  a  statutory 
grant  by  a  prior  legislature  null  and  void,  as  having  been 
procured  by  corrupt  means,  and  declaring  that  the  patents 
which  had  been  issued  in  pursuance  thereof  were  equally 
invalid.  It  appeared  on  the  face  of  the  pleadings  and  from 
the  special  verdict  that  the  plaintiff  was  a  purchaser  from 
the  original  grantee  for  value,  and  without  notice  of  the 
alleged  fraud.  In  delivering  judgment,  Marshall,  C.-J.,  took 
the  following  ground :  "  It  was  doubtful  whether  a  statutory 
grant  could  be  impeached  under  any  circumstances  on  the 
ground  of  fraud.  Such  an  inquiry  would  involve  considera- 
tions which  could  hardly  be  defined  in  principle  or  applied  in 
fact.  Must  the  corruption  be  direct  ?  or  would  interest  or  un- 
due influence  of  any  kind  be  sufficient  ?  Must  the  vitiating 
cause  operate  on  a  majority,  or  on  what  number,  of  the  mem- 
bers? Should  an  act  which  accorded  with  the  will  of  the 
people,  and  might  have  been  sustained  by  the  unbiassed  judg- 
ment of  the  House,  be  set  aside  because  other  and  improper 
motives  had  co-operated?  However  this  might  be,  it  was 
very  clear  that  the  State  ought  not  in  any  such  case  to  act  as 
a  judge  in  her  own  cause.  The  inquiry  should  be  prosecuted 
judicially  before  some  impartial  tribunal.  If  this  course  had 
been  pursued  in  the  case  under  consideration,  it  would  have 
appeared  that  the  title  of  a  bona  fide  purchaser  was  involved, 
and  could  not  be  impeached  for  a  fraud  in  the  original  grant. 
The  plaintiff  had  bought  without  notice  of  the  corrupt  means 
which  were  alleged  to  have  been  used  in  procuring  the  pas- 
sage of  the  statute,  and  equity  would  not  subject  him  to  the 
penalties  attached  to  an  offence  of  which  he  was  ignorant. 
The  rescission  of  the  former  statute  could  not  therefore  be 
vindicated  as  a  judicial  act;  and  it  might  be  doubted  whether 
there  was  any  ground  on  which  it  could  be  sustained.  The 
general  principle  that  one  legislature  might  repeal  a  law 
which  another  had  passed,  was  undeniable ;  but  it  was  equally 

I  6  Cranch,  86. 


BE  SET  ASIDE  FOB  BRIBERY.  737 

true  that  if  an  act  was  done  under  a  law,  a  succeeding  legis- 
lature could  not  undo  it.  The  past  could  not  be  recalled  by 
the  most  absolute  power.  To  sustain  the  statute  by  which 
the  title  of  the  plaintiff  was  alleged  to  be  invalidated,  it  must 
therefore  be  contended  that  the  legislature  might  devest  vested 
rights  in  every  instance,  and  take  property  fairly  and  honestly 
acquired  without  compensation.  This  perhaps  might  be  a 
doubtful  question  if  Georgia  were  a  single  sovereign  power, 
subject  to  no  other  restrictions  than  those  imposed  in  her 
own  Constitution.  But  this  was  not  the  case.  She  was  a 
part  of  a  large  empire,  a  member  of  the  American  Union,  and 
subject  to  the  restraints  which  the  Constitution  of  that  Union 
had  imposed.  By  that  Constitution  it  was  provided  that  no 
State  should  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts.  A  bill  of  attainder 
might  affect  the  life  of  an  individual,  or  might  confiscate  his 
property,  or  it  might  do  both.  In  this  form  the  power  of 
the  legislature  over  the  lives  and  fortunes  of  individuals  was 
especially  restrained.  An  ex  post  facto  law  was  one  render- 
ing an  act  punishable  in  a  manner  in  which  it  was  not  punish- 
able when  committed.  Such  a  law  might  inflict  penalties 
on  the  person,  or  might  inflict  pecuuiary  penalties  to  swell 
the  public  treasury.  The  legislature  was  then  prohibited 
from  passing  a  law  by  which  a  man's  estate,  or  any  part  of 
it,  should  be  seized  for  a  crime  which  did  not  by  some  pre- 
vious law  render  him  liable  to  that  punishment.  Why,  then, 
should  violence  be  done  to  the  natural  meaning  of  words  for 
the  purpose  of  leaving  to  the  legislature  the  power  of  seizing 
for  public  use  the  estate  of  an  individual  in  the  form  of  a 
law  annulling  the  title  by  which  he  held  that  estate  ?  No 
sufficient  ground  could  be  perceived  for  such  a  distinction. 
The  rescinding  act  would  have  the  effect  of  an  ex  post  facto 
law.  It  forfeited  the  estate  of  the  plaintiff  for  a  crime  not 
committed  by  himself,  but  by  those  from  whom  he  purchased. 
This  could  not  be  done  in  the  form  of  an  ex  post  facto  law  or 
bill  of  attainder.  Why,  then,  was  it  allowable  in  the  form  of 
a  law  annulling  the  original  grant  ?  " 
•  It  would  seem  obvious  from  this  argument,  which,  like 


738  CONFIBMING  AN  INVALID  GRANT 

all  the  reasoning  of  Chief- Justice  Marshall  on  constitutional 
questions,  is  conspicuous  for  its  breadth  of  thought  and 
logical  precision,  that  he  viewed  the  clause  prohibiting  bills 
of  attainder,  ex-post  facto  laws,  and  laws  impairing  the  obli- 
gation of  contracts,  as  forming  a  whole  intended  to  protect 
the  citizen  from  retroactive  legislation  to  the  prejudice  of 
vested  rights  in  any  form  ;  and  although  dicta  may  be  found 
tending  to  narrow  this  construction,  there  is  no  case  in  which 
the  contrary  has  been  adjudged.^  It  is  nevertheless  estab- 
lished, under  the  authorities  and  on  principle,  that  retroactive 
legislation  is  not  necessarily  invalid  under  the  National  Con- 
stitution or  the  organic  laws  of  the  several  States,  even  when 
the  effect  is  to  defeat  pre-existing  rights,  or  enable  a  plaintiff 
to  recover  property  which  might  otherwise  have  been  legally 
withheld.-  The  question  is  not  an  abstract  one,  but  depends 
largely  on  the  circumstances  under  and  the  end  for  which 
the  power  is  exercised ;  and  a  reference  to  the  books  will 
show  that  there  is  a  field  within  which  such  statutes  may 
operate  beneficially  to  the  community  and  without  prejudice 
to  individuals.  Laws  prescribing  periods  of  limitation,  or 
regulating  the  order  and  admissibility  of  evidence,  are  re- 
troactive, unless  existing  demands  are  exempted  from  their 
operation  ;  and  this  is  equally  true  of  laws  confirming  trans- 
actions which,  though  good  in  substance,  have  failed  in 
point  of  form.  But  inasmuch  as  such  legislation  does  not 
impose  a  penalty,  and  tends  to  sustain  what  has  been  done 
or  agreed  on,  or  to  compel  suit  to  be  brought  within  a  reason- 
able period  and  while  the  transaction  is  still  fresh  in  the 
minds  of  the  parties,  it  is  not  ex  post  facto,  nor  does  it  impair 
the  obligation  of  contracts. 

A  statute  confirming  an  invalid  deed  or  contract,  or  even 
creating  a  contract  where  none  exists,  may  be  unconsti- 
tutional on  other  grounds,  but  does  not  impair  the  obligation 

1  See  ante,  p.  548. 

2  Weed  V.  Donovan,  114  Mass.  187;  Calder  v.  Bull,  3  Dallas,  386; 
Lycoming  v.  Union,  15  Pa.  170;  Bleakney  v.  The  Bank,  17  S.  &  R.  64; 
Weister  v.  Hade,  52  Pa.  474 ;  Grim  v.  The  Weissenberg  School  District, 
57  Id.  433. 


DOBS  NOT  IMPAIR  THE  OBLIGATION.  739 

which  the  framers  of  the  Constitution  intended  to  protect. 
The  point  is  too  plain  for  argument,  and  has  been  repeatedly 
decided  by  the  State  tribunals  and  the  Supreme  Court  of 
the  United  States.^ 

When  the  case  of  Satterlee  v.  Matthewson  was  first  heard 
by  the  Supreme  Court  of  Pennsylvania,  a  lease  from  a 
claimant  under  a  Connecticut  grant  was  held  to  be  void 
under  a  statute  which  imposed  a  penalty  on  every  one  who 
should  enter  on,  hold,  or  convey  land  by  virtue  of  such  a 
title ;  and  it  was  said  to  follow  that  the  lessee  might  pur- 
chase an  outstanding  title  and  set  it  up  against  the  lessor. 
The  judgment  rendered  against  the  tenant  in  the  court  be- 
low was  accordingly  reversed,  and  a  venire  de  novo  awarded. 
Before  the  case  came  to  a  second  trial  in  the  county  court, 
the  legislature  declared  that  "  the  relation  of  landlord  and 
tenant  shall  exist  and  be  held  as  fully  and  effectually  as 
between  other  citizens  of  the  commonwealth  in  any  cause 
now  pending  or  hereafter  to  be  brought  between  Connecti- 
cut settlers  and  Pennsylvania  claimants,"  and  the  jury  were 
instructed  that  the  objection  on  which  the  court  above  relied 
was  obviated,  and  that  their  verdict  should  be  for  the  land- 
lord. A  writ  of  error  was  again  brought  to  the  Supreme 
Court,  who  were  of  opinion,  with  the  court  below,  that  as 
the  law  which  invalidated  the  lease  was  made  for  a  public 
end,  —  to  prevent  intrusion  on  the  territory  of  Pennsylvania 
under  grants  from  another  State,  —  she  might  well  do  away 
with  the  disability  which  it  imposed,  and  allow  the  contract 
to  operate  as  the  parties  intended. 

The  case  was  then  taken  to  the  Supreme  Court  of  the 
United  States,  which  sustained  the  judgment.  The  repeal 
of  so  much  of  the  antecedent  statutes  as  invalidated  the 
lease  did  not  impair  the  obligation,  because  the  effect  was 
the  direct  opposite,  —  to  confirm  the  contract  which  the  pre- 
vious legislation  of  the   State  had  impaired.     Should  the 

1  Welch  V.  Wadsworth,  30  Conn.  149;  Wood  v.  Kennedy,  19  Ind. 
68;  Satterlee  v.  Matthewson,  13  S.  &  R.  133;  16  Id.  169;  2  Peters, 
380;  Read  v.  Plattsmouth,  107  U.  S.  568;  Ewell  v.  Daggs,  108  Id.  143, 
150;  Gross  v.  The  U.  S.  Mortgage  Co.,  Id.  477,  488. 


740  TECHNICAL  DEFECTS  MAY  BE 

legislature  go  so  far  as  to  declare  an  antecedent  contract 
valid,  notwithstanding  the  immoral  or  illegal  nature  of  the 
consideration,  the  statute  would  contravene  the  general  prin- 
ciples of  jurisprudence  and  impose  an  obligation  where  none 
existed ;  but  it  would  still  be  obvious  that  to  create  and 
to  impair  were  not  the  same,  and  that  the  constitutional 
prohibition  was  not  infringed.  It  had  been  contended  that 
the  statute  was  a  usurpation  of  the  judicial  function.  This 
allegation  did  not  appear  to  be  well  founded ;  but,  if  just, 
there  was  still  no  infringement  of  the  Constitution  of  the 
United  States,  which  does  not  assume  to  regulate  the  dis- 
tribution of  power  among  the  various  branches  of  the  State 
governments.  As  to  the  remaining  objection,  that  the  act 
divested  vested  rights,  if  such  was  its  operation  it  was  still 
not  contrary  to  the  Constitution,  which  only  prohibited  re- 
troactive legislation  when  ex  post  facto  or  impairing  the 
obligation  of  contracts. 

In  Wilkinson  v.  Leland,^  a  law  confirming  a  sale  made  by 
an  executrix  in  Rhode  Island,  under  a  license  granted  by  a 
court  of  probate  sitting  in  New  Hampshire,  was  in  like  manner 
sustained  by  the  Supreme  Court  of  the  United  States.  Story, 
J.,  said,  in  giving  judgment,  that  even  in  the  absence  of  the 
express  restraints  which  did  not  exist  in  Rhode  Island,  no 
legislative  assembly  in  this  country  could  arbitrarily  dispose  of 
the  property  of  the  citizen  without  his  consent.  There  was  no 
instance  where  a  statute,  assuming  to  transfer  the  property  of 
A  to  B,  had  been  held  constitutional.  On  the  contrary,  such 
attempts  had  uniformly  been  resisted,  as  contrary  to  the  funda- 
mental principles  of  a  free  government.  The  law  under  con- 
sideration was  not  obnoxious  to  this  criticism.  The  sale  which 
it  purported  to  confirm  was  made  for  the  payment  of  the 
testator's  debts,  and  the  proceeds  had  been  duly  distributed 
among  his  creditors.  The  transaction  was  therefore  good  in 
substance,  and  only  erred  in  point  of  form.  If  application 
had  been  made  to  the  courts  of  Rhode  Island,  they  would 
have  granted  the  requisite  authority  to  the  executrix;  and 

1  2  Peters,  657.     See  Nelson  v.  Lane,  79  Pa.  407 ;  post^  p.  847. 


CURED  EETROACTIVELY.  741 

what  the  judiciary  would  have  authorized,  the  legislature 
might  ratify. 

In  Watson  v.  Mercer,^  the  legislature  of  Pennsylvania  had 
passed  an  act  declaring  that  no  deed  theretofore  executed 
by  a  husband  and  wife,  and  acknowledged  by  them  before 
a  justice  of  the  peace  or  other  duly  authorized  officer,  should 
be  deemed  invalid  by  reason  of  any  informality  or  omission 
in  setting  forth  the  particulars  of  the  acknowledgment,  but 
that  such  instrument  should  be  as  effectual  for  passing  the 
estate  as  if  every  such  particular  were  specifically  set  forth 
in  the  certificate.  The  effect  of  this  statute  was  to  confirm 
deeds  which  Avere  invalid  under  the  pre-existing  law  as 
interpreted  by  the  judiciary;  and  it  was  contended  that  this 
was  contrary  to  the  Constitution  of  the  United  States  and  of 
the  State  of  Pennsylvania,  as  operating  to  divest  the  grantors* 
right  and  confer  it  on  the  grantees.  The  Supreme  Court  of 
the  State  was,  however,  of  opinion  that  the  law  did  not  oper- 
ate on  the  right,  but  merely  on  the  evidence  by  which  the 
right  was  established.  As  the  law  stood  before  the  passage 
of  the  statute,  the  magistrate's  certificate  was  the  only  proof 
that  could  be  received  to  show  that  the  deed  was  acknowledged 
by  the  feme  covert  separately  and  apart  from  her  husband, 
and  with  a  full  knowledge  of  the  contents ;  but  the  legisla- 
ture might  allow  the  defects  and  errors  of  the  writing  to  be 
supplemented  by  extrinsic  evidence.  If,  however,  the  act 
operated  on  the  title  and  not  on  the  evidence,  the  effect 
was  still  not  to  impair  the  contract,  but  to  confirm  it. 
The  judgment  was  affirmed  by  the  Supreme  Court  of  the 
United  States  on  the  ground  that  so  far  as  the  statute  had 
any  legal  operation,  it  went  to  sustain  the  grant  by  giving 
the  effect  to  the  deed  which  the  grantor  intended.  The 
same  rule  has  been  applied  in  other  instances,  and  is  beyond 
dispute.^ 

It  is  immaterial  as  regards  the  principle  whether  the  con- 
tract is  voidable,  or  so  far  contrary  to  the  common  or  statutory 

1  1  Watts,  330,  357;  8  Peters,  88. 

2  Goshorn  v.  Purcell,  11  Ohio  St.  641;  Carpenter  v.  Pennsylvania,  17 
Howard,  456 ;  Journay  v.  Gibson,  56  Pa.  57. 


T42  DISABILITIES  IMPOSED  FOR  PUBLIC  ENDS 

law  as  to  be  merely  void.  If  it  be  said  that  the  mischief  is 
the  same  whether  an  obligation  is  imposed  where  none  ex- 
ists, or  an  existing  obligation  abrogated,  the  answer  is  that 
it  does  not  fall  within  the  constitutional  prohibition,  nor  can 
the  repeal  of  a  disabling  statute  be  viewed  as  penal  because 
it  precludes  the  grantor  or  obligor  from  making  a  technical 
excuse  for  not  complying  with  his  engagement.^ 

In  Hess  v.  Wurtz^  the  Supreme  Court  of  Pennsylvania 
held  that  a  bank-note  issued  contrary  to  an  act  of  as- 
sembly which  declared  that  every  such  instrument  should 
be  null  and  void,  might  be  rendered  valid  by  repealing  the 
disability  and  authorizing  the  payees  to  proceed  to  judg- 
ment. Gibson,  J.,  said  that  the  object  of  the  legislature 
in  prohibiting  manufacturing  companies  to  issue  bank-notes, 
and  declaring  such  instruments  void,  was  not  to  create  a 
privilege  or  shield  the  makers  from  paying  their  just  debts,; 
but  to  prevent  them  from  violating  the  law  by  destroying  the 
credit  of  their  paper  and  rendering  it  worthless  to  the  takers. 
The  loss  fell  on  those  who  received  the  notes ;  but  the  com- 
pany were  the  principal  offenders,  and  it  did  not  lie  in  their 
mouths  to  say  that  the  State  could  not  remit  the  penalty  by 
enabling  the  holders  to  sue.  Might  not  the  legislature  pardon 
the  offence  without  consulting  those  who  had  committed  it ; 
or  could  one  particepa  eriminis  insist  on  having  another 
punished  because  he  was  interested  in  having  the  penalty 
inflicted  ?  Although  the  contract  was  so  far  void  that  it  could 
not  be  enforced  by  suit,  there  was  still  a  moral  obligation  to 
perform  it  whenever  the  prohibition  was  withdrawn ;  and  it 
would  be  going  very  far  to  say  that  the  legislature  might  not 
add  a  legal  sanction. 

It  follows  from  this  decision  that  wherever  the  right  of 
the  defendant  to  annul  his  contract  has  been  conferred  from 
motives  of  public  policy,  and  not  for  his  protection,  it  may 

1  Ewell  V.  Daggs,  108  U.  S.  143,  151;  Gross  v.  The  U.  S.  Mortgage 
Co.,  Id.  477,  488  ;  Lewis  v.  McElvain,  16  Ohio,  347  ;  Trustees  v. 
McCaughey,  2  Ohio  St.  155;  Savings  Bank  v.  Fallon,  28  Conn.  97; 
Bleakney  v.  The  Bank,  17  S.  &  K  64. 

2  4  S.  &  R.  356. 


MAY  BE  REPEALED  RETROACTIVELY.       743 

be  taken  away  retroactively  by  a  statute.^  The  consideration 
received,  and  the  promise  actually  made,  though  contrary  to 
law,  are,  agreeably  to  this  view,  sufficient  ground  for  the  subse- 
quent imposition  of  the  liability  which  he  intended  at  the 
time  to  incur.  The  law  has  been  so  held  in  numerous  in- 
stances growing  out  of  the  repeal  of  the  statutes  against 
usury ,2  and  was  recently  applied  by  the  Supreme  Court  of 
the  United  States  in  a  case  arising  since  the  adoption  of 
the  Fourteenth  Amendment,  which  might  have  been  thought 
to  bring  it  within  a  different  rule.^ 

In  the  cases  above  cited,  the  invalidity  was  statutory ; 
but  we  may  concur  with  the  dicta  in  Satterlee  v,  Matthew- 
son,^  that  the  power  of  confirmation  may  equally  well  be 
exercised,  so  far  as  the  prohibition  of  laws  impairing  the 
obligation  is  concerned,  where  the  contract  is  invalid  at 
common  law  for  want  of  some  essential  requisite,  or  be- 
cause it  contravenes  the  rules  of  morals.  A  retroactive 
statute  giving  the  force  and  effect  of  a  covenant  to  a 
naked  parol  promise,  or  providing  that  it  shall  be  valid, 
notwithstanding  the  want  of  a  consideration,  obviously  does 
not  impair  the  obligation,  although  it  may  conflict  with  the 
rule  that  no  one  shall  be  deprived  of  his  life,  liberty,  or 
property  without  due  process  of  law.  The  better  opinion 
would  nevertheless  seem  to  be  that  if  the  legislature  may 
arbitrarily  repeal  a  defence  that  has  been  given  for  the  bene- 
fit of  the  State,  it  has  such  power  over  rules  which  have 
been  laid  down  for  the  protection  of  the  individual.  The 
disabilities  of  minors  and  femes  covert  are  in  this  category, 
which  should  seemingly  include  usury  laws,  as  intended  to 
guard  needy  and  improvident  debtors  from  sacrificing  the 
future  to  present  ease.  It  is  equally  clear  that  a  law  modify- 
ing or  controlling  the  course  of  legal  proceedings,  or  even 

1  Gross  V.  The  U.  S.  Mortgage  Co.,  108  U.  S.  477,  489;  Read  v.  Platts- 
mouth,  107  Id.  568. 

2  Curtis  V.  Leavitt,  15  N".  Y.  9;  Welch  v.  Wadsworth,  30  Conn.  149; 
Parmelee  v.  Lawrence,  48  111.  331;  Danville  v.  Pace,  25  Grattan,  1. 

«  Ewell  V.  Daggs,  108  U.  S.  143,  151. 
*  See  ante,  p.  739;  13  S.  &  R.  133. 


744  BREACH  OF  CONDITION  CANNOT 

setting  aside  a  judgment  or  granting  a  new  trial,  although 
it  may  be  void  as  a  usurpation  of  judicial  power,  does  not 
impair  the  obligation  of  contracts  within  the  meaning  of  the 
Constitution  of  the  United  States,  unless  the  suit  is  brought 
to  enforce  a  contract,  and  the  effect  is  to  hinder  or  preclude 
the  only  effectual  remedy.^ 

In  Calder  v.  Bull  ^  the  question  was  as  to  the  validity  of 
a  law  passed  by  the  legislature  of  Connecticut  granting 
a  rehearing  in  a  case  where  the  court  of  probate  had 
decided  against  the  validity  of  a  will ;  and  it  was  held 
that  as  the  statute  did  not  divest  the  title  of  either  party, 
it  might  be  objectionable  as  an  exercise  of  judicial  power, 
but  certainly  did  not  contravene  the  constitutional  pro- 
hibition of  ex  post  facto  laws  and  laws  impairing  the  obli- 
gation of  contracts.  A  like  decision  was  made  in  Garrison  v. 
The  City  of  New  York.^  A  contract  which  is  invalidated 
by  fraud  or  through  the  breach  of  a  dependent  covenant, 
falls  within  a  different  category,  and  cannot  be  legislatively 
confirmed  without  impairing  the  obligation  as  regards  the 
injured  party,  who  is  entitled  to  elect  between  a  rescission  of 
the  agreement,  and  proceeding  under  it  for  damages.  A  law 
confirming  a  conveyance  or  lease  which  has  become  voidable 
through  the  non-fulfilment  of  a  condition,  or  forbidding  a  re- 
entry for  the  breach,  would  obviously  be  unconstitutional, 
as  taking  away  a  remedy  implied  in  or  given  expressly  by  the 
contract. 

The  question  what  are  ex  post  facto  laws  and  laws  impair- 
ing the  obligation  of  contracts,  was  until  recently  of  the 
more  importance  because  the  prohibition  of  such  legislation 
was  the  only  safeguard  afforded  by  the  National  Constitution 
against  arbitrary  and  retroactive  legislation  by  the  States. 
An  act  of  assembly  might  consequently  be  in  direct  conflict 
with  the  rule  that  no  one  shall  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law,  and  yet  leave  the 

1  Schenly  v.  The  Commonwealth,  36  Pa.  29;  Grim  v.  The  School 
District,  57  Pa.  433;  Evans  v.  Montgomery,  4  W.  &  S.  218. 

2  3  Dallas,  386. 

8  21  Wallace,  196.    See  post,  p.  846. 


BE  CURED  RETROACTIVELY.  745 

Supreme  Court  of  the  United  States  powerless  to  correct 
the  error,  and  obliged  to  treat  it  as  a  legal  if  not  legitimate 
exercise  of  sovereignty.  We  are  thus  brought  to  a  consider- 
ation of  the  effect  of  the  Fourteenth  Amendment,  which  is 
the  subject  of  the  ensuing  lecture. 


LECTURE  XXXIV. 

The  Fifth  and  Fourteenth  Amendments.  —  Source  and  Meaning  of  the 
Phrase  '*  Due  process  of  law."  —  Synonymous  with  the  Judicium  pa- 
rium  suorum  and  Lex  terrce  of  Magna  Charta.  —  As  embodied  in  the 
Amendments  it  operates  as  a  Restraint  on  the  States  and  on  all  the 
Branches  of  the  Federal  Government.  —  The  Fifth  and  Fourteenth 
Amendments  have  a  wider  Scope  than  the  Prohibition  of  ex  post  facto 
Laws  and  Laws  impairing  the  Obligation  of  Contracts.  —  What  con- 
stitutes the  Deprivation  which  they  forbid.  —  It  need  not  consist  in  an 
Actual  Taking  or  Imprisonment.  —  Nature  and  Scope  of  the  Police 
Power.  —  It  includes  Acts  which  are  necessary  for  the  Protection  of 
Health,  Order,  Liberty,  and  Property.  —  Belongs  generally  to  the 
States,  and  not  to  Congress.  —  Includes  Property  employed  for  Public 
Purposes. — Regulation  of  Railway  Fares  and  Charges. — What  is 
necessary,  a  Judicial  Question. — Monopolies.  —  Destruction  of  Prop- 
erty to  prevent  it  from  falling  into  Hostile  Hands,  or  the  Spread  of 
Fire  or  Infection.  —  The  Operation  of  the  Police  Power  during  In- 
surrection or  an  Invasion  as  Martial  Law.  —  The  Fifth  and  Four- 
teenth Amendments  applicable  to  Prospective  as  well  as  Retroactive 
Legislation. 

The  only  lestriction,  under  the  Constitution  as  originally 
framed,  on  the  power  of  the  States  over  contracts  and  prop- 
erty, in  whatever  form,  was  the  prohibition  of  ex  post  facto 
laws  and  laws  impairing  the  obligation  of  contracts,  and  it 
so  remained  for  many  years ;  for  although  the  Fifth  Amend- 
ment soon  afterwards  provided  that  "no  person  shall  be 
deprived  of  property  without  due  process  of  law,"  it  was 
confined  to  the  General  Government,  and  did  not  operate  as 
a  restraint  on  the  States.^  It  followed  that  if  a  State  legisla- 
ture usurped  the  judicial  function,  took  private  property  for 
public  use  without  compensation,  enforced  an  invalid  contract, 

1  See  ante,  pp.  510,  532. 


THE  FOUETEENTH  AMENDMENT.  747 

or  sported  with  vested  rights  by  any  means  short  of  an  ex  post 
facto  law  or  law  impairing  the  obligation  of  contracts,  the 
sufferer  might  seek  redress  in  the  local  tribunals,  but  could 
not  appeal  to  the  national  judiciary. ^  The  grievance  was  hy- 
pothetical rather  than  real,  because  the  States  seldom  abused 
their  powers^  and  justice  was  evenly  administered  in  the 
courts ;  but  when  the  South  was  prostrated  by  the  Rebellion, 
the  leaders  of  the  dominant  party  resolved  on  measures  that 
would  tend  to  keep  them  in  power,  and  might  be  necessary  for 
the  protection  of  the  colored  race.  The  political  adventurers 
who  were  raised  to  office  through  the  operation  of  the  Recon- 
struction Acts  misused  their  opportunities,  and  there  was 
reason  to  apprehend  that  the  whites  would  regain  their  ascen- 
dency, and  might  exclude  the  negroes  from  the  polls  or  refuse 
to  admit  them  to  the  jury-box.  The  Fourteenth  Amendment 
was  accordingly  proposed  by  Congress  and  ratified  b}'-  the 
legislatures  of  the  various  States,  although  it  would  in  all 
probability  have  been  rejected  had  it  been  left  to  a  popular 
vote.  The  first  section  reads  as  follows  :  ''All  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process 
of  law,  or  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  Agreeably  to  the  second 
section,  "  When  the  right  to  vote  ...  is  denied  to  any  of 
the  male  inhabitants  of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or  other  crime, 
the  basis  of  representation  therein  shall  be  reduced  in  the 
proportion  which  the  number  of  such  male  citizens  shall  bear 
to  the  whole  number  of  male  citizens  twenty-one  years  ot 
age  in  such  State."  It  was  soon  afterwards  provided,  by 
the  Fifteenth  Amendment,  that  the  right  of  citizens  of  the 
United  States  to  vote  should  not  be  denied  or  abridged  by 

1  See  ante,  p.  744. 

VOL.  II.  —  7 


748  SOURCE  OF  THE  PHRASE 

the  United  States  or  by  any  State  on  account  of  race,,  color, 
or  previous  condition  of  servitude.^ 

The  revolution  worked  by  these  amendments  is  a  momen- 
tous one,  and  must  be  judged  by  consequences  which  time 
alone  can  disclose.  The  gift  of  political  equality  to  a  people 
who  are  not  allowed  to  stand  at  the  same  social  level  is  a 
doubtful  boon,  which  may  engender  discontent  and  ani- 
mosity rather  than  gratitude.  If  the  colored  race  achieve 
distinction  at  the  Bar,  on  the  Bench,  in  the  pulpit,  and  in 
the  halls  of  Congress,  or  amass  wealth  in  trade,  they  will 
feel  and  resent  their  exclusion  from  the  society  of  men  who 
may  be  beneath  them  in  education  and  intellect,  and  still 
more  the  denial  of  the  connubium,  which  was  su  fruitful  cause 
of  offence  in  antiquity.  The  problem  might  be  solved 
through  intermarriage,  which  would  fuse  both  races  into 
one  ;  and  the  statutes  which  require  children  of  both  colors 
and  sexes  to  be  educated  in  the  same  schools,  tend  in  that 
direction.  But  the  difficulty  would  recur  in  another  form, 
because  there  are  comparatively  few  persons  of  African 
descent  in  the  Northern  States,  and  if  the  color-line  came 
to  be  drawn  in  the  latitude  of  Washington,  sections  dif- 
fering as  widely  in  complexion  and  descent  as  in  climate 
and  productions  might  find  it  impracticable  to  co-exist  under 
the  same  government.  A  similar  and  still  more  momentous 
question  would  have  arisen  on  the  Pacific  coast  from  the 
immigration  of  the  Chinese,  but  for  the  recent  legislation  of 
Congress.^ 

To  trace  all  the  bearings  of  these  amendments  would 
unduly  enlarge  this  work ;  but  it  is  material  to  inquire  what 
is  the  deprivation  which  the  Fourteenth  Amendment  forbids, 
and  what  the  due  process  of  law  which  it  contemplates. 
The  authorities  cited  on  this  head  bear  equally  on  the  Fifth 
Amendment,  which  imposes  a  like  restraint  on  Congress. 

To  answer  these  inquiries  we  must  revert  to  Magna 
Charta,   as  expounded  in  the   Second   Institutes  by  Lord 

1  See  ante,  p.  509. 

2  See  Chew  Hong  r.  United  States,  112  U.  S.  536,  577;  and  ante,  pp. 
123,  472. 


"  DUE  PEOCESS  OF  LAW."  749^" 

Coke,  and  critically  considered  in  the  instructive  Constitu-- 
tional  History  of  England  by  Canon  Stubbs.^  "  No  freeman 
shall  be  taken  or  imprisoned  or  disseized  or  be  outlawed  or 
exiled  or  anywise  destroyed,  but  by  tlie  lawful  judgment  of 
his  peers  or  by  the  law  of  the  land."  Such  is  the  emphatic 
language  of  the  thirty-ninth  section ;  and  the  fortieth  declares, 
"  To  none  will  we  sell,  to  none  will  we  deny  or  delay,  justice 
or  right."  The  lex  terroe  here  spoken  of  is  the  customary  or 
common  law,  which  then  as  now  was  claimed  as  a  birth- 
right by  every  Englishman,  or  as  it  was  paraphrased  in  th& 
statutes  of  Edward  III.,  cited  in  the  Institutes,  due  "  process 
of  law ; "  and  the  judicium  parium  suorum  signifies,  accord- 
ing to  the  same  authority,  the  verdict  of  his  equals,  that  is, 
of  men  of  his  own  condition,  or,  as  we  should  now  say,  trial 
by  a  jury  not  selected  arbitrarily,  but  drawn  from  the  body 
of  the  county.  These  "  famous  and  precious  clauses  "  were 
to  a  great  extent  an  enunciation  of  principles  common  to  all 
the  Germanic  tribes  and  had  been  declared  in  like  terms 
by  the  successors  of  Charlemagne ;  but  they  gained  in  value 
and  significance  through  the  extension  of  the  privileges' 
which  they  conferred,  beyond  the  class  who  won  and  held 
their  lands  by  the  sword,  to  every  free  man  on  English  soil.^ 
Although  originally  designed  as  checks  on  the  executive, 
judicial,  and  legislative  functions  as  then  centred  in  the 
king  in  council,^  they  now  operate  as  restraints  on  all  the 
branches  of  our  government.*  They  are  venerable  from  their 
antiquity  and  for  the  service  which  they  have  rendered  ta 
the  cause  of  freedom  for  many  centuries  and  on  both  sides 
the  Atlantic,  and  interwoven  with  the  institutions  of  the 
English-speaking  race  as  now  disseminated  throughout  the 
globe.  Time  has  given  them  a  sanction  which  is  wanting 
to  new-invented  formulas ;  and  when  understood  and  applied 

1  Stubbs,  Constitutional  History,  vol.  i.  ch.  xii.  p.  603. 

2  Ibid.  ch.  xii.  p.  603. 

8  Ibid.  ch.  xiii.  p.  713.     See  ante,  p.  148. 

*  United  States  v.  Lee,  106  U.  S.  196 ;  Poindexter  v.  Greenhow,  114 
Id.  285;  Westervelt  v.  Gregg,  12  N.  Y.  202,  212;  Norman  v.  Heist,  5 
W.  &  S.  173;  Wynehamer  v.  The  People,  13  N.  Y.  378,  433. 


750  MAGNA  CHAETA. 

aright,  they  afford  a  protection  against  arbitrary  power  which 
includes  all  that  is  essential  in  the  other  constitutional  safe- 
guards and  renders  them  superfluous.  "When  it  is  said,  in 
effect,  that  no  one  shall  be  deprived  of  any  natural  right 
save  by  the  judgment  of  a  duly  constituted  tribunal  pro- 
ceeding conformably  to  established  rules  and  principles,  and 
with  an  opportunity  for  a  trial  by  jury  if  the  question  is  one 
of  fact,  all  has  been  said  that  is  possible  to  human  foresight, 
and  the  rest  must  be  left  to  the  good  sense  and  virtue  of 
the  people  and  of  those  to  whom  they  intrust  the  reins  of 
government. 

The  organic  laws  of  the  various  States  contain  provisions 
which  sometimes,  as  in  the  case  of  Maryland,  simply  follow  the 
language  of  Magna  Charta,  that  no  man  shall  be  taken  or  im- 
prisoned or  disseized  of  his  freehold,  liberties,  or  privileges, 
or  outlawed  or  exiled,  or  in  any  manner  deprived  of  his 
life,  liberty,  or  property,  but  by  the  judgment  of  his  peers  or 
the  law  of  the  land ;  and  in  other  instances  substitute  due 
process  of  law,  or  the  due  course  of  law,  as  giving  in  brief 
and  comprehensive  terms  the  substance  of  the  entire  clause.^ 

Notwithstanding  any  seeming  diversity  of  phraseology,  all 
tend  to  the  same  end,  and  are  designed  "  to  protect  the  citizen 
from  the  arbitrary  exercise  of  the  powers  of  government 
unrestrained  by  the  established  principles  of  private  right 
and  distributive  justice."  ^ 

1  Murray  v.  Imp.  Co.,  18  Howard,  276;  Craig  v.  Kline,  65  Pa.  413; 
Wynehamer  v.  The  People,  13  N.  Y.  378,  433;  Cooley  on  Constitutional 
Limitations,  ch.  xi.  p.  35. 

2  See  the  Bank  of  Columbia  v.  Oakley,  4  Wheaton,  235. 

Amolig  the  many  able  expositions  of  this  safeguard  there  is  none  finer 
or  more  apposite  than  that  given  by  Sharswood,  J.,  in  Palairet's  Appeal, 
67Pa.  479,  485:  — 

"  Retrospective  legislation  is  certainly  not  in  itself  unconstitutional, 
unless  so  far  as  it  has  an  effect  prohibited  by  the  fundamental  law.  If, 
however,  an  act  of  assembly,  whether  general  or  special,  public  or  pri- 
vate, operates  retrospectively  to  take  what  is  by  existing  law  the  property 
of  one  man,  and  without  his  consent  transfer  it  to  another,  with  or  with- 
out compensation,  it  is  in  violation  of  that  clause  in  the  Bill  of  Rights, 
Constitution,  Art.  IX.,  sect.  9,  which  declares  that  no  man  'can  be 
deprived  of  his  life,  liberty,  or  property,  unless  by  the  judgment  of  his 


"LAW  OF  THE  LAND."  751 

It  results  from  the  language  held  in  Palairet's  Appeal,^ 
and  a  long  line  of  authorities,  that  "  by  the  law  of  the  land," 

peers  or  the  law  of  the  land.'  K  this  is  true  of  a  person  accused  of 
crime,  to  whom  literally  the  words  apply,  a  fortiori  is  it  so  as  to  .one 
against  whom  no  accusation  is  made.  By  the  '  law  of  the  land '  is  meant, 
not  the  arbitrary  edict  of  any  body  of  men,  not  an  act  of  assembly,  though 
it  may  have  all  the  outward  form  of  a  law,  but  due  process  of  law,  by 
which  either  what  one  alleges  to  be  his  property  is  adjudged  not  to  be 
his,  or  it  is  forfeited  upon  conviction  by  his  peers  of  some  crime  for 
which  by  law  it  was  subject  to  forfeiture  when  the  crime  was  committed. 
If  this  be  not  so,  every  restriction  upon  legislative  authority  would  be  a 
vain  formula  of  words,  without  life  or  force.  For  what  more  can  the 
citizen  suffer  than  to  be  '  taken,  imprisoned,  disseized  of  his  freehold, 
liberties,  and  privileges,  be  outlawed,  exiled,  and  destroyed,  and  be  de- 
prived of  his  property,  his  liberty,  and  his  life,'  without  crime?  It  will 
not  have  escaped  notice  that  in  the  clause  of  the  Constitution  referred 
to,  property  is  put  in  the  same  category  with  liberty  and  life;  and  if  an 
act  of  assembly  can  deprive  a  man  of  his  property  without  a  trial  and 
judgment  for  even  legal  cause  of  forfeiture,  it  may  in  like  manner  de- 
prive him  of  his  life  or  his  liberty,  imprison  him  in  a  dungeon,  or  hang 
him  without  judge  or  jury.  It  is  true  that  there  are  other  more  special 
declarations  which  give  additional  securities  to  liberty  and  life ;  but  by 
classing  all  three  together  in  this  provision  of  the  fundamental  law,  the 
people  have  declared  their  equal  inviolability.  There  are  also  other  spe- 
cial provisions  as  to  security  of  property  adapted  to  the  dangers  with 
which  in  a  democratic  form  of  representative  government  it  is  more 
espiecially  threatened.  But  neither  those  clauses  which  relate  to  life  and 
liberty,  nor  those  which  regard  property,  weaken  the  power  of  this  grand 
primary  inhibition  which  the  sturdy  barons  of  England,  arms  in  hand, 
wrested  from  their  sovereign  at  Runnymede :  *  Nullus  liber  homo  capi- 
atur  vel  imprisonetur  aut  disseisiatur  de  libero  tenemeuto  suo  vel  liberta- 
tibus  vel  liberis  consuetudinibus  suis,  aut  utlagetur,  aut  exuletur,  aut 
aliquo  modo  destruatur ;  nee  super  eum  ibimus,  nee  super  eum  mittemus, 
nisi  per  legale  judicium  parium  suorum  vel  per  legem  terrse.'  This  is 
still  the  corner-stone  of  our  liberties.  It  becomes  us  to  watch  it  with  the 
greatest  vigilance ;  not  to  suffer  it  to  be  undermined  on  any  pretext,  how- 
ever specious.  To  this  the  most  solemn  sanction  of  our  official  oath 
applies  with  the  greatest  force ;  for  while  other  parts  of  the  Constitution 
may  be  merely  directory,  the  people  have  most  solemnly  and  emphatically 
said  as  to  the  Ninth  Article,  'To  guard  against  transgressions  of  the 
high  powers  which  we  have  delegated,  we  declare  that  everything  in  this 


1  67  Pa.  479. 


"75?  A  LAW  PASSED  TO  WORK  THE  WRONG 

or  the  equivalent  words,  "  due  process  of  law,"  we  are  not  to 
understand  a  statute  passed  to  work  the  wrong,  or  requiring 
the  judiciary  to  make  a  particular  decree  without  regard  to 

.^rticle  is  ex;cepted  out  of  the  general  powers  of  govemmeut,  and  shall  for^ 
ever  remain  inviolate.'  It  has  become,  then,  a  fundamental  axiom  of 
constitutional  law,  not  only  in  this,  but  in  every  other  State  of  this  Union, 
that  the  legislative  power  cannot,  either  directly  or  indirectly,  without 
the  consent  of  the  owner,  take  private  property  for  merely  private  use, 
with  or  without  compensation. 

*'  In  a  case  arising  in  Rhode  Island,  which,  without  a  written  Consti- 
tution, except  her  charter  of  15  Car.  II.,  which  invested  the  General  As- 
sembly with  power  to  make  laws  *so  as  such  laws,  etc.,  be  not  contrary 
9,nd  repugnant  unto,  but  as  near  as  may  be  agreeable  to  the  laws  of  Eng- 
land, considering  the  nature  and  constitution  of  the  place  and  people 
there,*  Mr.  Justice  Story,  delivering  the  opinion  of  the  Supreme  Court, 
held  this  language:  'In  a  government  professing  to  regard  the  great 
rights  of  personal  liberty  and  of  property,  and  which  is  required  to  legis- 
late in  subordination  to  the  general  laws  of  England,  it  would  not  lightly 
be  presumed  that  the  great  principles  of  Magna  Charta  were  to  be  dis- 
regarded, or  that  the  estates  of  its  subjects  were  liable  to  be  taken  away 
without  trial,  without  notice,  and  without  offence.  Even  if  such  au- 
thority could  be  deemed  to  have  been  confided  by  the  charter  to  the 
General  Assembly  of  Rhode  Island  as  an  exercise  of  transcendental  sover- 
eignty before  the  Revolution,  it  can  scarcely  be  imagined  that  that  great 
event  could  have  left  the  people  of  that  State  subjected  to  its  uncontrolled 
and  arbitrary  exercise.  That  government  can  scarcely  be  deemed  to  be 
free  where  the  rights  of  property  are  left  solely  dependent  upon  the  will 
of  a  legislative  body,  without  any  restraint.  The  fundamental  maxims 
of  a  free  government  seem  to  require  that  the  rights  of  personal  liberty 
and  private  property  should  be  held  sacred.'  He  adds,  'We  know  of 
no  case  in  which  a  legislative  act  to  transfer  the  property  of  A  to  B  with- 
out his  consent  has  ever  been  held  a  constitutional  exercise  of  legislative 
power  in  any  State  in  the  Union.  On  the  contraiy,  it  has  been  constantly 
resisted,  as  inconsistent  with  just  principles,  by  every  judicial  tribunal  in 
which  it  has  been  attempted  to  be  enforced.'  "Wilkinson  v.  Leland,  2 
Peters,  657.  See  Varick  v.  Smith,  5  Paige,  N.  Y.  137;  Hoke  v.  Hender- 
son, 4  Devereaux,  1 ;  Norman  v.  Heist,  5  W.  &  S.  171 ;  Pittsburg  v.  Scott, 

1  Barr,  314;  Lamberton  v.  Hogan,  2  Id.  24;  Brown  v.  Hummel,  6  Id. 
86;  Dale  v.  Medcalf,  9  Id.  108;  Austin  v.  Trustees  of  University,  1 
Yeates,  260;  Concord  R.  R.  Co.  v.  Greely,  17  N.  H.  57;  Gillan  v, 
Hutchinson,  16  Cal.  163;  Coffin  t;.  Rich,  45  Me.  509;  Southard  v.  Central 
R.  R.  Co.,  2  Dutch.  13;  Kelly  v.  McCarthy,  3  Bradf.  7;  Powers  v.  Bergen, 

2  Sel.  368;  Greenough  v.  Greenough,  1  Jones,  489;  McCabe  v.  Emerson, 
6  Harris,  111;  Bolton  v.  Johns,  5  Barr,  149." 


IS  NOT  THE   "  LAW  OF  THE  LAND."  7^ 

principles,  but  "  the  general  law,  which  hears  before  it  con- 
demns, which  proceeds  upon  inquiry,  and  renders  judgment 
only  after  trial."  The  meaning  is  that  ever}^  citizen  shall 
hold  his  life,  liberty,  property,  and  immunities  under  the 
protection  of  general  rules  which  govern  society.  Every- 
thing which  may  pass  under  the  form  of  an  enactment  is  not 
the  law  of  the  land.  Such  was  the  definition  given  by  Webster 
arguendo  in  the  Dartmouth  College  Case ;  and  it  has  been 
followed  throughout  the  subsequent  course  of  decision.^ 

In  Palairet's  Appeal,  an  act  authorizing  the  extinguish- 
ment of  irredeemable  ground-rents  on  the  payment  of  their 
value  as  estimated  by  a  jury,  was  sought  to  be  sustained 
under  the  right  of  eminent  domain  and  the  power  of  the 
legislature  to  regulate  property  and  modify  its  incidents. 
The  court  held  that  the  former  power  was  confined  to  taking 
for  public  use,  and  that  while  the  latter  may  be  exercised 
prospectively  if  the  legislature  think  fit,  "  the  cases  abund- 
antly show  that  whenever  the  operation  of  any  general  regu- 
lation is  to  extinguish  or  destroy  that  which,  by  the  law, 
is  the  property  of  any  person,  so  far  as  it  has  that  effect 
it  is  unconstitutional  and  void.  Every  power  which  the 
legislature  possess  is  subject  to  the  prohibition  contained  in 
the  Declaration  of  Rights ;  and  one  of  them,  as  we  have 
seen,  is  that  they  cannot  take  the  property  of  any  one,  except 
for.  public  use,  without  his  consent." 

It  is  not  less  well  settled  that  as  the  legislature  cannot 
directly  deprive  any  man  of  his  property,  so  they  cannot 
attain  that  end  indirectly  by  conferring  such  a  power  on 
the  courts,  and  requiring  them  to  carry  it  into  effect.  This 
interpretation  is  abundantly  sustained  by  Irvine's  Appeal  2 
and  Palairet's  Appeal,  as  well  as  by  a  multitude  of  authorities 
in  the  other  States. 

'  Norman  v.  Heist,  5  W.  k  S.  173;  Craig  v.  Kline,  65  Pa.  399,  413; 
Philadelphia  v.  Scott,  81  Id.  83,  90;  Brown  v.  Hummell,  6  Id.  86,  91; 
Irvine's  Appeal,  16  Id. '256;  Shoenberger  v.  The  School  Directors,  32  Id. 
34,  39;  Taylor  v.  Porter,  4  Hill,  140;  Westervelt  v.  Gregg,  12  N.  Y.  202, 
207;  Clark  y.  Mitchell,  64  Mo.  564. 
2  16  Pa.  256. 


764  CONGRESS  CANNOT  ABROGATE 

It  is  obvious  that  the  Fifth  and  Fourteenth  Amendments 
have  a  much  wider  scope  than  the  clause  which  guards  the 
sanctity  of  contracts.  Agreeably  to  the  one,  no  change  can 
be  made  which  impairs  the  obligation ;  agreeably  to  the 
other,  a  contract  cannot  be  varied,  whether  the  obligation 
is  or  is  not  impaired.  The  prohibitory  clause  simply  pro- 
tects choses  in  action  and  vested  rights  as  between  grantor 
and  grantee.  The  amendments  are  a  safeguard  for  property 
in  whatever  form,  and  may  be  as  much  violated  by  imposing 
an  obligation  where  none  exists,  as  by  a  refusal  to  enforce 
an  existing  obligation.  A  statute  abrogating  a  right  arising 
from  or  conferred  by  a  grant  or  charter,  conflicts  with  the 
guaranty  of  life,  liberty,  and  property,  as  well  as  with  that 
which  protects  the  obligations  of  contracts.  The  greater 
includes  the  less ;  and  had  the  prohibition  of  ex  post  facto 
laws  and  laws  impairing  the  obligation  of  contracts  not  been 
expressed,  it  would  for  most  practical  purposes  have  been 
implied  from  the  Fifth  and  Fourteenth  Amendments  and  the 
like  provisions  in  the  State  Constitutions.  Hence,  although 
the  United  States  are  not  forbidden  to  impair  the  obligation 
of  contracts,  they  are  as  unable  as  the  States  to  take  back 
what  they  have  granted,  or  defeat  a  vested  right  arising  from 
any  other  source.^  The  better  opinion  would  consequently 
seem  to  be,  that  Congress  cannot  annul  the  franchises  which 
they  have  conferred  on  a  corporation  or  an  individual  by  re- 
pealing the  grant  or  charter,  although  it  does  not  follow  that 
this  principle  would  cover  a  collateral  stipulation  for  exemp- 
tion from  taxation,  which  may  be  advantageous,  but  is  not 
essential  to  the  exercise  or  enjoyment  of  the  grant. 

In  the  Sinking-Fund  cases,  Waite,  C.-J.,  said :  "  The 
United  States  cannot,  any  more  than  a  State,  interfere 
with  private  rights,  except  for  legitimate  governmental  pur- 
poses. They  are  not  included  within  the  constitutional  pro- 
hibition which  prevents  States  from  passing  laws  impairing 
the  obligations  of  contracts  ;  but  equally  with  the  States 
they  are  prohibited  from  depriving  persons  or  corporations 

1  The  Sinking-Fund  Cases,  99  U.  S.  718 ;  Hepburn  v.  Griswold, 
8  Wallace,  603;  Shollenberger  v.  Briuton,  52  Pa.  9. 


CONTKACTUAL  OR  VESTED  EIGHTS.  755 

of  property  without  due  process  of  law.  They  cannot  legis- 
late back  to  themselves,  without  making  compensation,  the 
lands  they  have  given  this  corporation  to  aid  in  the  con- 
struction of  its  railroad.  Neither  can  they,  by  legislation, 
compel  the  corporation  to  discharge  its  obligations  in  respect 
to  the  subsidy  bonds,  otherwise  than  according  to  the  terms 
of  the  contract  already  made  in  that  connection.  The  United 
States  are  as  much  bound  by  their  contracts  as  are  individuals. 
If  they  repudiate  their  obligations,  it  is  as  much  repudiation, 
with  all  the  wrong  and  reproach  that  term  implies,  as  it 
would  be  if  the  repudiator  had  been  a  State  or  a  munici- 
pality or  a  citizen.  No  change  can  be  made  in  the  title 
created  by  the  grant  of  the  lands  or  in  the  contract  for  the 
subsidy  bonds  without  the  consent  of  the  corporation." 

It  is  nevertheless  clear  that  Congress  may  exercise  the 
powers' which  have  been  conferred  upon  them  for  govern- 
mental purposes,  although  rights  arising  ex  contractu  are 
thereby  impaired.  A  bankrupt  law  or  law  debasing  the 
standard  of  the  coinage,  a  declaration  of  war  or  an  embargo, 
is  not  unconstitutional,  although  it  cannot  be  carried  into 
effect  without  suspending,  varying,  or  annulling  prior  con- 
tracts.^ Were  Congress  to  enact  that  eighty-three  cents 
worth  of  silver  should  be  equal  to  one  hundred  cents  worth 
of  gold,  and  a  legal  tender  at  that  rate  for  contracts  pa}'- 
able  in  lawful  money  of  the  United  States,  the  law  would 
be  contrary  to  good  faith,  policy,  and  morals,  but  none  the 
less  binding  between  debtor  and  creditor.  In  Hepburn  v. 
Griswold,  Chase,  C.-J.,  made  a  distinction  in  this  regard 
between  the  express  and  implied  powers  of  the  government, 
which  is  not  sustained  by  the  subsequent  course  of  decision. 

The  Constitution  does  not  define  the  deprivation  which  it 
prohibits ;  ^  but  the  authorities  establish  that  it  need  not  be 
entire,  or  consist  in  the  dispossession  of  the  owner  or  de- 
struction of  the  thing,  and  may,  on  the  contrary,  arise  from  an 
act  which  renders  the  thing  less  useful  or  valuable,  or  a  law 

1  Shollenberger  v.  Brinton,  52  Pa.  9;   Evans  v.  Eaton,  1  Peters  C. 
C.  R.  322;  Borie  v.  Trott,  5  Philadelphia,  370.     See  ante,  p.  575. 
a  See  Munn  v.  Illinois,  94  U.  S.  113. 


756  A  NUISANCE  CANNOT   BE  LEGISLATIVELY 

forbidding  its  appropriate  use  and  enjoyment,  although  the 
owner  is  not  dispossessed.^  Backing  the  water  of  a  stream 
on  a  man's  land,  or  diverting  the  stream  from  his  land,  is 
consequently  a  taking  or  deprivation,  whether  the  dam  is 
erected  on  his  land  or  elsewhere  ;  ^  and  so  of  acts  which, 
though  done  off  the  land,  constitute  a  nuisance  and  render 
it  less  valuable  pecuniarily,  or  unfit  for  habitation.^  It  is 
immaterial,  in  this  regard,  that  the  act  complained  of  is  done 
under  an  authority  conferred  by  law  and  for  a  public  use,  if 
it  is  unattended  with  compensation  and  transcends  the  limits 
within  which  an  owner  may  exercise  his  own  rights  without 
being  responsible  for  the  consequences  to  others.*  If  a  legis- 
lative grant  may  render  that  which  was  public  property  —  as, 
for  instance,  a  highway  ;or  navigable  stream  —  so  far  private 
that  the  grantee  may  use  it  for  any  purpose  which  would 
be  lawful  were  it  absolutely  his  own,  it  can  do  no  more, 
and  will  not  warrant  any  act  that  occasions  loss  to  others 
and  for  which  ownership  is  not  a  justification  at  common 
law.^  Such  a  statute  may  consequently  be  a  defence  to  a 
civil  or  criminal  suit  at  the  instance  of  the  State,  but  not  to 
the  claim  of  a  citizen  for  damages  for  a  special  inconvenience 
or  discomfort  to  him  in  excess  of  that  occasioned  to  the 
community  at  large,  unless  the  act  is  done  by  virtue  of  the 
right  of  eminent  domain,  and  then  only  to  the  extent  of 
limiting  the  recovery  to  compensation  for  the  pecuniary 
loss.6     In  The  Baltimore  &  Potomac  R.  R.  Co.  v.  The  Fifth 

1  Wynehamer  v.  The  People,  13  K  Y.  378;  The  People  v.  Otis,  90  Id. 
48;  In  re  Jacobs,  98  Id.  98,  105;  The  People  v.  Marx,  99  Id.  377;  Pum- 
pelly  V.  The  Green  Bay  Co.,  13  Wallace,  166;  The  Bridge  Co.  v.  The 
United  States,  105  U.  S.  502. 

2  See  ante,  pp.  383,  388,  398. 

8  Pumpelly  v.  The  Green  Bay  Co.,  13  Wallace,  166;  Sinnickson  v. 
Johnsons,  17  N.  J.  151;  The  Baltimore  &  Potomac  R.  R.  Co.  v.  The 
Fifth  Baptist  Church,  108  U.  S.  317,  333. 

*  Sinnickson  v.  Johnsons,  17  N.  J.  151 ;  Crittenden  v.  Wilson,  5 
Cowen,  165. 

^  See  ante,  p.  413. 

«  See  Rigney  v.  Chicago,  102  111.  79 ;  The  Baltimore  &  Potomac  R.  R. 
'  Co.  u.  The  Fifth  Baptist  Church,  108  U.  S.  317;  and  ante,  p.  418. 


AUTHOEIZED  WITHOUT  COMPENSATION.  T5T 

Baptist  Church  the  suit  was  brought  to  recover  damages  for 
the  injury  and  annoyance  to  the  plaintiffs  in  the  use  of  their 
church  as  a  place  of  worship  by  smoke,  dust,  and  noises 
proceeding  from  the  defendants'  works  and  locomotives ;  and 
it  was  held  not  to  be  a  defence  that  the  company  were 
authorized  by  Congress  to  bring  their  tracks  within  the 
limits  of  Washington,  and  to  construct  such  works  as  were 
necessary  and  expedient  for  the  completion  and  maintenance 
of  their  road,  and  that  the  engine-house  and  repair-shop  com- 
plained of  were  skilfully  constructed,  the  chimneys  higher 
;than  required  by  the  building  regulations  of  the  city,  and 
that  as  little  smoke  was  emitted  as  the  nature  of  the  business 
would  permit. 

It  was  also  held  that  the  depreciation  of  the  plaintiff's 
property  was  not  the  only  element  to  be  considered  in  assess- 
ing the  damages,  and  might,  indeed,  be  entirely  disregarded. 
The  plaintiffs  were  entitled  to  recover  because  the  incon- 
venience and  discomfort  caused  to  the  congregation  tended 
to  destroy  the  use  of  the  building  for  the  purposes  for  which 
it  was  erected.  The  property  might  be  valuable  and  sala- 
ble for  other  purposes  were  the  church  entirely  unfitted 
for  public  worship  by  the  noise,  smoke,  and  odors  of  the 
defendants'  workshop.  But,  as  the  court  below  properly  in- 
structed the  jury,  the  congregation  had  the  same  right  to  the 
comfortable  enjoyment  of  their  house  for  church  purposes 
that  an  individual  has  to  his  own  house  ;  and  the  discomfort 
and  annoyance  in  its  use  for  those  purposes  was  a  primary 
consideration  in  allowing  damages. 

The  conclusion  reached  under  the  last  head  does  not 
appear  to  be  altogether  sound.  When  a  public  and  private 
use  conflict,  the  latter  must  give  way,  because  the  party  who 
suffers  from  the  deprivation  is  not  entitled  to  weigh  his 
convenience  against  the  State's,  and  should  be  content  with 
a  sum  which  will  enable  him  to  establish  himself  as  com- 
fortably elsewhere.  A  statute  is  not  a  justification  for  acts 
done  for  a  private  purpose  which  would  amount  to  a  nuisance 
at  common  law ;  and  the  wrongdoer  is  answerable  for  all 
the  consequences  and  may  be  compelled  to  desist  by  an  iJX-* 


758  WHAT  CONSTITUTES  THE  DEPRIVATION 

junction  or  repeated  punitive  verdicts ;  but  the  application 
of  such  a  rule  to  acts  done  under  a  legislative  authority  for 
public  purposes  would  frustrate  the  right  of  eminent  domain. 
Had  the  railroad  company  taken  the  church  property  for 
the  construction  of  its  workshops,  they  could  not  have  been 
compelled  to  pay  more  than  the  market  value  ;  and  it  is  not 
easy  to  see  how  their  liability  or  the  injury  to  the  congrega- 
tion could  be  greater  from  acts  which  rendered  the  building 
less  suitable  and  useful  for  religious  services.  The  court 
seem  to  have  wavered  between  holding  that  Congress  could 
not  confer  the  authority  claimed  by  the  defendants,  and 
holding  that  the  latter  had  so  far  exceeded  the  authority 
conferred  by  Congress  that  the  acts  complained  of  could 
not  be  upheld  as  essential  to  the  exercise  and  enjoyment  of 
their  franchise.^ 

To  render  a  legislative  command  a  defence  to  a  civil  or 
criminal  proceeding  for  a  deprivation  without  due  process 
of  law,  it  must  be  one  which  the  legislature  can  constitution- 
ally issue  ;  that  is,  relate  to  a  public  right,  or  if  private  rights 
are  concerned,  be  for  a  public  purpose  and  attended  with 
compensation.  Such  a  mandate  will  not,  therefore,  be  a  justi- 
fication for  an  act  injuriously  affecting  health,  which  is  cov- 
ered by  the  clause  protecting  life,  and  cannot  be  arithmetically 
computed  or  paid  for  in  currency.  The  legislature  will  not 
be  presumed,  in  providing  for  the  construction  of  a  reservoir 
as  a  feeder  for  a  canal,  to  have  intended  to  authorize  a 
malarious  pool  which  infects  the  neighborhood ;  but  if  such 
be  their  purpose,  it  should  be  disregarded  by  the  courts, 
and  cannot  be  pleaded  to  an  indictment  for  the  nuisance. 

1  This  decision  stands  in  marked  contrast  to  Lippincott  v.  Pennsylva- 
nia R.  R.  Co.,  19  Weekly  Notes,  513  (see  ante,  p.  423).  In  both  instances 
the  acts  complained  of  were  done  on  land  belonging  to  the  defendants 
under  an  authority  conferred  by  the  legislature;  but  while  in  the  latter 
the  court  questioned,  if  they  did  not  absolutely  deny,  the  right  to  recover, 
unless  the  noise  produced  by  the  defendants'  locomotives  exceeded  that 
which  would  have  been  occasioned  by  hauling  all  the  freight  which  passed 
over  the  railroad  in  carts  past  the  plaintiff's  door,  he  was  held  entitled  in 
the  former  to  compensation  exceeding  the  pecuniary  loss,  and  for  prospec- 
tive injury  as  well  as  that  actually  inflicted. 


WHICH  THE  AMENDMENTS   FORBID.  759 

The  point  has  been  decided  differently  in  Pennsylvania, 
where  the  courts  proceed  on  the  assumption  that  the  clause 
requiring  compensation  for  property  taken  in  the  exercise  of 
the  right  of  eminent  domain  should  be  read  as  meaning  that 
property  may  be  injured  or  destroyed  without  compensation, 
if  it  be  not  taken ;  and  it  is  held  to  follow,  that  a  recovery 
cannot  be  had  for  any  injurious  consequence  of  the  appro- 
priation of  land  to  public  use  which  does  not  amount  to  an 
occupation  of  the  premises  and  dispossession  of  the  owner.^ 

It  is  notwithstanding  clear,  as  I  have  already  stated, 
that  the  prohibition  is  not  confined  to  an  actual  taking, 
but  includes  every  enactment  which  deprives  the  owner  of 
the  rights  in  which  property  consists,  or  precludes  him  from 
putting  his  land  or  goods  to  their  appropriate  use.^  He 
cannot,  save  in  the  due  exercise  of  the  police  power,  and 
where  the  case  imperatively  requires  it,  be  forbidden  to  sell, 
or  directed  how  to  hold  or  enjoy ;  nor  can  the  use  or  sale  be 
placed  under  restrictions  which  amount  to  a  prohibition,  or 
render  the  property  valueless  or  useless.  If  the  legislature 
can  thus  restrict  the  future  acquisitions  of  the  citizen,  it  has 
no  such  power  over  his  existing  rights.^ 

As  was  observed  in  Wynejiamer  v.  The  People,*  "prop- 
erty "  is  the  right  to  possess,  use,  enjoy,  and  dispose  of  a  thing. 
The  term,  although  frequently  applied  to  the  thing  itself, 
in  strictness  means  only  the  rights  of  the  owner  in  relation 
to  it.^  A  man  therefore  may  be  deprived  of  his  property  in 
a  chattel  without  its  being  seized  or  physically  destroyed 
or  taken  from  his  possession.     Whatever  subverts  his  rights 

1  The  West  Branch  Canal  Co.  v.  Mulliner,  68  Pa.  357;  The  Common- 
wealth V.  Reed,  34  Id.  275;  Monongahela  Navigation  Co.  v.  Coons,  6  W. 
&  S.  101 ;  The  Philadelphia  &  Trenton  R.  R.  Co.  6  Wharton,  45.  See 
ante,  p.  386. 

2  In  re  Jacobs,  98  N.  Y.  98,  105;  The  People  r.  Otis,  90  Id.  48;  The 
People  V.  Marx,  99  Id.  397.     See  ante,  pp.  383,  756. 

'  In  re  Jacobs,  98  N.  Y.  98,  105;  Wynehamer  v.  The  People,  13  Id. 
378,  391,  437;  Palairet'^  Appeal,  67  Pa.  479,  494. 

*  13  N.  Y.  378,  433. 

^  Bouvier's  Law  Diet.,  sub  voce  Property;  1  Bl.  Com.  138;  Webster's 
Diet,     See  ante,  p.  357. 


760  NECESSITY  MAY  GIVE   THE  LAW, 

in  regard  to  it,  annihilates  his  property  in  it.  A  law  pro- 
viding in  regard  to  any  article  in  which  a  right  of  property 
is  recognized,  that  it  shall  not  be  sold,  used,  or  kept  in  any 
place  whatsoever  within  the  State,  would  fall  directly  within- 
the  letter  of  the  constitutional  inhibition,  as  it  would  in 
the  most  effectual  manner  possible  deprive  the  owner  of  his 
property,  without  the  interposition  of  a  court  or  the  use  of 
any  process  whatever. 

Such  laws,  therefore,  as  were  recently  made  by  Parliament 
to  regulate  the  relation  of  lessor  and  lessee  in  Ireland,  by 
compelling  the  landlord  to  pay  for  improvements  made  with- 
out his  consent,  and  to  accept  whatever  rent  a  tribunal  ap- 
pointed by  the  Government  might  designate  as  fair,  instead 
of  that  reserved  in  the  lease,  would  be  the  deprivation  which 
Magna  Charta  condemns  and  is  forbidden  by  the  Constitu- 
tion of  the  United  States;  nor  can  Mr.  George's  theories 
as  to  the  ownership  of  land  be  carried  into  effect  so  long 
as  the  United  States  stand  as  at  present  constituted,  and  the 
judiciary  enforce  the  organic  law.^ 

It  is  not  less  well  settled  that  whatever  is  essential  to 
maintain  order,  to  prevent  the  growth  and  spread  of  disease, 
or  for  the  suppression  of  crime,  —  in  short,  to  guard  against 
the  ills  which  assail  social  and  private  life,  is  lawful,  although 
the  power  cannot  be  carried  further  than  the  circumstances 
imperatively  require.''^  It  is  on  this  ground  of  a  necessity 
transcending  ordinary  rules  that  the  law  forbids  the  storage 
of  gunpowder  or  other  explosive  compounds  in  populous 
neighborhoods,  regulates  or  prohibits  the  sale  of  poisons, 
provides  for  the  abatement  of  nuisances,  and  sanctions  arrests 
without  a  warrant  where  the  criminal  might  otherwise  escape. 
And  as  necessity  is  a  law  for  itself,  a  private  citizen  may, 
when  the  emergency  does  not  admit  of  delay,  do  what  is 
requisite,  without  waiting  for  an  authority  from  the  legis- 
lature or  the  order  of  a  court.^     Though  an  arbitrary  arrest 

1  See  Palairet's  Appeal,  67  Pa.  479. 

2  Palairet's  Appeal,  67  Pa.  479 ;  Wynehamer  v.  The  People,  13  N.  Y. 
399,  435. 

8  Ashley's  Case,  12  Reports,  92;  Wakely  v.   Hart,  6  Bmney,  316; 


WITHOUT   A   STATUTE.  T61 

without  a  warrant  is  ordinarily  a  deprivation  of  liberty  and 
forbidden  by  the  Constitution,  there  are  cases  where  it  is 
not  only  justifiable,  but  a  duty  to  the  community.  Every 
man  may  act  as  a  constable,  in  case  of  need,  to  prevent  the 
commission  of  a  crime  or  the  escape  of  the  offender ;  and 
if  the  latter  resists  and  kills  the  person  who  is  endeavoring 
to  take  him  into  custody,  it  will  be  murder.^  Should  the 
accused  be  detained  for  an  unreasonable  time  by  his  captors 
without  being  brought  before  a  magistrate,  it  may  be  ground 
for  an  action  ;  but  the  court  will,  instead  of  discharging  him 
on  a  habeas  corpus,  hand  him  over  to  the  proper  authori- 
ties, to  be  dealt  with  in  the  due  course  of  law.^  It  has  been 
justly  said  that  society  has  the  right  of  self-preservation 
which  belongs  to  individuals ;  and  it  is  not  less  true  that 
an  individual  may  intervene  on  behalf  of  the  community 
when  the  danger  is  imminent  and  cannot  be  averted  without 
the  immediate  use  of  force.  It  is  on  this  ground  that  martial 
law  may  be  proclaimed  by  the  commander  of  a  besieged 
town  or  invaded  district,  fire-arms  employed  to  disperse 
a  mob,  or  buildings  destroyed  to  prevent  the  spread  of  a 
conflagration  ;  and  the  statutes  which  direct  or  regulate  acts 
of  this  description  confer  no  power  that  might  not  be  exer- 
cised though  they  were  not  enacted.  ''  For  the  common- 
wealth a  man  shall  suffer  damage ;  as  for  saving  a  citj'-  or 
town,  a  house  shall  be  pulled  down  if  the  next  be  on  fire, 
and  the  suburbs  of  a  city  in  time  of  war  shall  be  plucked 
down,  and  a  thing  for  the  commonwealth  every  man  may 
do  without  being  liable  for  an  action,  as  it  is  said  in  3 
Henry  VIII.,  vol.  15  ;  and  in  this  case  the  rule  is  true, 
Princeps  et  respuhlica  ex  justa  causa  possent  rem  meam 
auferre''^  The  right  of  jettison  to  save  a  vessel  laboring 
in  a  storm  and  preserve  the  lives  of  th^  crew  and  passengers 

Brooks  V.  The  Commonwealth,  61  Pa.  353,  358;  Holly  v.  Mix,  3  Wend. 
350,  353;  Rex  v.  Pinney,  3  C.  P.  263. 

1  Ex  parte  Krans,  1  B.  &  C.  258;  The  State  v.  Rutherford,  1 
Hawks,  457;  Ruloff  y.'The  People,  45  N.  Y.  213;  Brooks  v.  The  Com- 
monwealth, 61  Pa.  353. 

2  Ex  parte  Krans,  1  B.  &  C.  258.  »  Mouse's  Case,  12  Coke,  63. 


762  WHAT  ACTS   ARE  NECESSARY, 

was  referred  in  Mouse's  Case^  to  these  principles.  It  is 
immaterial  that  the  owner  of  the  goods  is  present  and  forbids 
the  sacrifice.  Should  he  bring  trespass,  the  necessity  may 
be  pleaded  in  bar. 

In  Meeker  v.  Van  Rensselaer  ^  the  court  held  that  a  build- 
ing containing  nlimerous  small  apartments,  inhabited  by  a 
multitude  of  lodgers  whose  filthy  habits  were  calculated  to 
breed  infection  and  increase  the  ravages  of  the  Asiatic  chol- 
era, might  be  thrown  down  by  persons  residing  in  the  neigh- 
borhood, although  the  authority  which  was  alleged  to  have 
been  granted  by  the  Board  of  Health  could  not  be  adduced 
in  evidence  for  the  want  of  formal  proof.  The  court  said 
that  this  was  not  material,  because  the  defendants  did  not 
need  any  authority  except  that  arising  from  the  circum- 
stances. The  acts  which  authorize  sheriffs,  magistrates,  or 
other  officers  to  destroy  infected  clothing  or  to  tear  down 
buildings  in  order  to  prevent  the  spread  of  a  conflagration, 
rested  on  the  inherent  right  of  self-defence,  and  simply  reg- 
ulated a  power  which  might  be  exercised  on  the  ground  of 
necessity  though  it  were  not  conferred  in  terms.^  "  It  is 
enough,"  said  Comstock,  J.,  in  Wynehamer  v.  The  People, 
"  to  say  of  such  enactments  that  they  are  founded  upon  and 
are  regulations  of  the  common  law  right  of  every  man  to 
destroy  property  in  case  of  immediate  and  overwhelming 
necessity  to  prevent  the  ravages  of  fire  and  pestilence.* 
Statutes  of  this  description  merely  appoint  a  municipal  agent 
to  judge  of  the  emergency,  and  direct  the  performance  of 
acts  which  any  individual  might  do  at  his  peril  without  any 
statute  at  all."  Hence  one  who  acts  in  cases  of  the  above 
description  without  being   authorized  thereto  by  a  statute, 

1  12  Coke,  63. 

2  15  Wend.  397. 

3  See  Russell  v.  The  Mayor  of  New  York,  2  Denio,  461 ;  The  Mayor 
of  New  York  v.  Lord,  17  Wend.  285;  18  Id.  127;  Wynehamer  v.  The 
People,  13  N.  Y.  378,  401,  439;  Meeker  v.  Van  Eensselaer,  15  Wend.  397; 
The  American  Print  Works  v.  Lawrence,  23  N.  J.  Law,  590;  The  Fertil- 
izing Co.  V.  Hyde  Park,  97  U.  S.  659 ;  Mitchell  v.  Harmony,  13  Howard, 
115;  Respublica  v.  Sparhawk,  1  Dallas,  337. 

*  2  Kent's  Com.  339. 


A  JUDICIAL  QUESTION.  763 

and  one  who  relies  upon  the  authority  of  such  a  statute  as  a 
justification,  stand  upon  the  same  basis,  and  must  show  that 
there  was  reasonable  and  probable  cause  for  belief  in  the 
imminence  of  a  calamity  which  could  be  averted  in  no  other 
way.i 

In  like  manner,  the  goods  of  a  citizen  may  be  destroyed 
in  time  of  war,  to  prevent  them  from  falling  into  hostile 
hands,  because  they  are,  under  these  circumstances,  poten- 
tially enemy's  property,  and  liable  to  be  dealt  with  as  al- 
ready his.2  It  is  not  enough,  on  the  one  hand,  that  the  act 
was  done  at  the  command  of  a  military  superior  or  under 
a  statutory  declaration  of  martial  law ;  ^  nor  will  the  justifi- 
cation fail,  on  the  other,  because  the  defendant  acted  with- 
out a  commission  or  authority  from  the  government.*  The 
material  question  is,  Had  he  reasonable  and  probable  cause 

1  "It  is  contended,"  said  Johnson,  J.,  in  Wynehamer  v.  The  People, 
13  N.  Y.  378,  439,  "  that  the  legislature  has  the  conceded  power  to  author- 
ize the  destruction  of  private  property  in  certain  cases  for  the  protection 
of  great  public  interests,  —  as,  for  instance,  the  blowing  up  of  buildings 
during  fires,  and  the  destroying  of  infected  articles  in  times  of  pestilence, 
—  and  that  the  legislature  is  necessarily  the  sole  judge  of  the  public  exi- 
gency which  may  call  for  the  exercise  of  this  power.  The  answer  is, 
that  the  legislature  does  not  in  these  cases  authorize  the  destruction  of 
property,  it  simply  regulates  that  inherent  and  inalienable  right  which  ex- 
ists in  every  individual  to  protect  his  life  and  his  property  from  immediate 
destruction.  This  is  a  right  which  individuals  do  not  surrender  when 
they  enter  into  the  social  state,  and  which  cannot  be  taken  from  them. 
The  acts  of  the  legislature  in  such  cases  da  not  confer  any  right  of 
destruction  which  would  not  exist  independent  of  them,  but  they  aim  to 
introduce  some  method  into  the  exercise  of  the  right.  See  the  able 
opinion  of  Senator  Sherman  in  Russell  v.  The  Mayor  of  New  York,  2 
Denio,  461.  It  has  never  yet  been  judicially  decided  in  this  State,  so 
far  as  I  am  aware,  that  the  officers  upon  whom  statutes  of  this  kind 
purport  to  confer  power  to  destroy  buildings  to  prevent  the  spread  of 
fires  would  be  justified  in  exercising  the  power  in  a  case  where  it  could 
not  be  properly  exercised  independent  of  the  statute ;  and  it  may  well  be 
doubted  whether  the  legislature  can  add  to  the  extent  or  force  of  the 
natural  right." 

2  Respublica  v.  Sparhawk,  1  Dallas,  337;  Ford  v.  Surget,  97  U.  S.  605. 
8  Mitchell  V.  Harmony,  13  Howard,  115. 

*  Respublica  v,  Sparhawk,  1  Dallas,  333. 

VOL.   II.  —  8 


764  A  STATUTE  NOT  A  JUSTIFICATION 

for  believing  that  the  measure  was  necessary  to  prevent  a 
capture  that  would  strengthen  the  hostile  power?  Such, 
also,  is  the  test  where  private  property  is  taken  in  further- 
ance of  a  military  operation  or  to  maintain  the  troops  wliich 
have  been  levied  by  the  government.  The  question  whether 
the  deprivation  was  necessary  is  one  of  fact  for  the  jury, 
under  the  instructions  of  the  court ;  ^  and  the  rule  applies  to 
the  destruction  of  a  building  to  prevent  the  spread  of  a  fire. 

Ordinarily,  acts  done  by  persons  in  arms  against  the 
government  are  tainted  with  the  illegality  of  the  end  in 
view,  and  punishable  by  the  criminal,  or  a  ground  for  the 
recovery  of  damages  under  the  civil,  law ;  but  when  an 
insurrection  assumes  the  proportions  of  a  civil  war,  the  rela- 
tions of  the  insurgents  among  themselves  are  the  same  as  if 
they  were  the  subjects  of  an  alien  and  hostile  power,  and 
no  one  of  them  can  maintain  an  action  against  another  for 
the  consequences  of  a  state  of  things  to  wliich  they  all 
impliedly  agreed.  In  Ford  v.  Surget,^  an  officer  of  the  Con- 
federate Government  was  accordingly  held  not  to  be  answera- 
ble, after  the  suppression  of  the  Rebellion,  for  the  destruction 
of  cotton  which  would  otherwise  have  been  captured  by  the 
Union  troops.  The  Confederate  statute  set  up  as  a  defence 
was  the  act  of  a  body  unknown  to  the  Constitution  of  the 
United  States,  and  had  no  bearing  on  the  case  ;  but  it  was 
none  the  less  true  that  the  plaintiff  had  by  voluntarily  re- 
maining in  the  territory  occupied  by  the  insurgents,  identified 
himself  with  their  cause,  and  must  be  regarded  as  consenting 
to  any  measure  that  could  consistently  be  adopted  by  them 
in  furtherance  of  the  war  which  they  were  then  waging 
against  the  government.  This  case  affords  a  singular  and 
convincing  proof  that  such  acts  depend  for  their  validity  on 
the  facts,  and  do  not  need  the  aid  of  legislation. 

The  problem  in  cases  of  this  kind  is  to  harmonize  two 
essential  principles,  which,  though  tending  to  the  same  end, 
may  sometimes  appear  discordant.  On  the  one  hand  is  the 
right  of  property,  which  has  in  all  ages  and  everywhere  been 
found  necessary  to  the  existence  of  society;   on  the  other, 

1  Mitchell  V.  Harmony,  13  Howard,  115.  ^  97  u.  S.  605. 


FOR  AN  UNNECESSARY  DEPRIVATION.  765 

the  not  less  necessary  right  of  society  to  guard  against  acts 
which  are  injurious  to  individuals  and  the  community  at 
large  ;  and  while  the  Constitution  expressly  forbids  the  depri- 
vation of  the  former,  it  impliedly  authorizes  measures  that  are 
requisite  for  the  vindication  of  the  latter.^  Both  are  indis- 
putable, and  when  severally  considered,  clear;  the  difficulty 
is  to  define  what  properly  belongs  to  each,  and  which  should 
in  a  given  case  prevail.  As  was  observed  in  Wynehamer  v. 
The  People,^  "  It  is  certain  that  the  legislature  cannot  to- 
tally annihilate  commerce  in  any  species  of  propert5%  and  so 
condemn  the  property  itself  to  extinction.  It  is  equally  cer- 
tain that  the  legislature  can  regulate  trade  in  property  of  all 
kinds.  Neither  of  these  propositions  is  denied  ;  but  they 
necessarily  lead  to  another,  —  that  between  regulation  and 
destruction  there  is  somewhere,  however  difficult  to  define 
with  precision,  a  line  of  separation.  All  reasoning,  there- 
fore, in  favor  of  upholding  legislation  which  belongs  to  one 
class  because  it  is  often  difficult  to  distinguish  it  from  that 
which  belongs  to  the  other,  must  be  fallacious,  because  it  is 
simply  reasoning  against  admitted  conclusions."  In  drawing 
the  line  between  these  opposing  considerations,  regard  may 
be  had,  as  was  pointed  out  in  Munn  v.  Illinois,^  to  the  course 
of  legislation  prior  to  the  declaration  of  independence,  and 
when  the  organic  laws  of  the  several  States  were  framed, 
and  regulations  which  were  then  generally  acquiesced  in, 
viewed  as  not  amounting  to  the  deprivation  which  the  Con- 
stitution forbids,  although  they  might  otherwise  appear  un- 
constitutional, as  constituting  a  monopoly,  or  imposing  an 
arbitrary  restraint  on  the  right  of  the  citizen  to  fix  the  price 
of  his  services.*  This  argument  must  not  be  pushed  too  far, 
because  Magna  Charta  was  simply  a  restraint  on  the  power 
of  the  Crown,  and  it  was  not  possible  to  bring  an  act  of 
Parliament  or  of  the  Colonial  legislatures  to  the  test  of  a 
judicial  application  of  the  principles  which  it  laid  down. 

1  Philadelphia  v.  Scgtt,  91  Pa.  80,  85. 

2  13  N.  Y.  399. 

8  94  U.  S.  113;  Munn  v.  Illinois,  94  U.  S.  113. 

4  The  Butchers'  Union  Co.  v.  Crescent  City  Co.,  16  Wallace,  42. 


766  POLICE  POWER  BELONGS 

The  power  to  make  such  regulations  for  intercourse,  for 
the  use  of  property,  and  for  business  as  are  requisite  for 
health,  order,  and  morals,  which,  as  I  have  elsewhere  noted, 
is  designated  as  the  police  power,^  may  be  exercised  inci- 
dentally by  the  United  States  in  furtherance  of  the  objects 
intrusted  to  their  care,  but  for  the  greater  part  remains  in 
the  States ;  and  the  laws  passed  to  carry  it  into  effect  belong 
to  "  that  immense  mass  of  legislation  which  controls  every- 
thing within  the  territory  of  a  State  not  surrendered  to  the 
General  Government,  all  of  which  can  be  most  advanta- 
geously administered  by  the  States  themselves.  Inspection 
laws,  quarantine  laws,  health  laws  of  every  description,  as 
well  as  laws  for  regulating  the  internal  commerce  of  a  State 
and  those  which  respect  turnpike  roads,  ferries,  etc.,  are 
component  parts.  No  direct  general  power  over  these  sub- 
jects is  granted  to  Congress,  and  they  consequently  remain 
subject  to  State  legislation."  ^ 

Two  consequences  flow  from  these  premises,  —  one,  that 
the  police  power  may  be  exercised  by  a  State  as  regards  mat- 
ters which  are  also  within  the  authority  of  Congress,  provided 
that  lies  dormant,  and  there  is  no  conflict ;  ^  the  other,  that 
it  cannot  be  exercised  by  Congress  as  to  matters  which  are 
exclusively  under  the  control  of  the  States.^  And  in  The 
United  States  v,  De  Witt,  an  act  of  Congress  rendering 
it  a  misdemeanor  "to  mix  for  sale  naphtha  and  illuminating 
oils,  or  to  sell  petroleum  inflammable  at  less  than  a  pre- 
scribed temperature,"  was  held  to  be  void,  as  encroaching 
on  the  police  power  and  purely  internal  commerce  of  the 
States. 

The  police  power  may  be  justly  said  to  be  more  general 
and  pervading  than  any  other.  It  embraces  all  the  opera- 
tions of  society  and  government ;  all  the  constitutional  pro- 

1  Gibbons  v.  Ogden,  9  Wheaton,  203;  The  Butchers'  Union  Co.  ». 
Crescent  City  Co.,  16  Wallace,  42  ;  Munn  v.  Illinois,  94  U.  S.  113.  See 
ante,  pp.  433,  490. 

2  The  License  Tax  Cases,  5  Wallace,  471;  Butchers'  Union  Co.  ». 
Crescent  City  Co.,  16  Id.  42;  Munn  v.  Illinois,  94  U.  S.  113. 

8  United  States  v.  De  Witt,  9  Wallace,  41. 


GENERALLY  TO  THE  STATES.  767 

visions  presuppose  its  existence,  and  none  of  them  preclude 
its  legitimate  exercise.^  It  is  impliedly  reserved  in  every 
public  grant.  Chartered  rights  and  privileges  are  therefore, 
like  other  property,  held  in  subordination  to  the  authority 
of  the  government,  which  may  be  so  exercised  as  to  preclude 
the  use  or  doing  of  the  very  thing  which  the  company  was 
constituted  or  authorized  to  manufacture  or  perform.^  The 
legislature  cannot  be  presumed  to  have  intended  to  tie  its 
hands  in  this  regard  in  the  absence  of  express  words ;  but  if 
such  a  purpose  were  declared,  it  would  fail,  as  an  attempt 
to  part  with  an  attribute  of  sovereignty  which  is  essential  to 
the  welfare  of  the  community.^ 

There  is  another  offshoot  of  the  multifarious  and  far-reach- 
ing police  power,  —  that  property,  which,  though  private,  is 
employed  for  public  purposes,  may  be  subjected  to  regula- 
tions which  are  essential  to  the  public  welfare  or  necessary  to 
prevent  abuse.  Railway-cars,  hackney-coaches,  ferry-boats, 
and  in  general  all  that  appertains  to  the  occupation  of  a  com- 
mon carrier,  are  within  the  principle,  which  applies  to  railways, 
turnpikes,  and  canals,  and  also  to  the  hotels  and  public  ware- 
houses which  receive  the  goods  or  passengers  at  the  termina- 
tion of  the  transit.* 

No  one  questions  the  right  of  a  State  or  of  a  municipal  cor- 
poration to  prescribe  the  maximum  of  speed  at  which  railway- 
trains  or  carriages  may  pass  through  a  town  or  city ;  and  a 
like  power  may  be  exercised  in  regard  to  vessels  when  sailing 
through  a  crowded  channel.^     Railways,  if  not  public  prop- 

1  The  Butchers'  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746,  751; 
The  License  Cases,  5  Howard,  583;  Munn  v.  Illinois,  94  U.  S.  113;  The 
Commonwealth  i\  Alger,  7  Gushing,  53,  84. 

2  The  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659;  Beer  Co.  v.  Massa- 
chusetts, 97  Id.  25;  Galena  R.  R.  v.  Appleby,  28  111.  283;  Ohio  R.  R. 
Co.  V.  McClelland,  25  Id.  140.     See  ante^  p.  620. 

«  Dingman  v.  The  State,  51  111.  277. 

*  See  Munn  v.  Illinois,  94  U.  S.  113. 

6  See  Vanderbilt  v.  Adams,  7  Cowen,  351 ;  The  Buffalo  R.  R.  Co.  v. 
Buffalo,  5  Hill,  209;  Thorpe  v.  The  Rutland  &  Burlington  R.  R.  Co.,  27 
Vt.  156;  The  Pittsburg  R.  R.  Co.  v.  The  S.  W.  Pennsylvania  R.  R.  Co., 
77  Pa.  175,  186. 


768        THE  LEGISLATURE  MAY  REGULATE   PROPERTY 

erty,  are  public  highways,  and  as  such  subject  to  public  super- 
vision;' and  the  legislature  may  require  a  railway  company 
to  fence  its  road,  provide  gates  at  the  crossings,  or  empower 
the  courts  to  regulate  the  intersection  of  two  or  more  rail- 
ways at  grade,  or  forbid  it  altogether  ;  2  and  in  The  Missouri 
&  Pacific  Railway  Co.  v.  Humes,  the  court  held  that  such 
companies  may  be  legislatively  compelled  to  provide  gates, 
fences,  and  cattle-guards,  and  be  mulcted  in  double  damages 
for  any  loss  which  ensues  from  a  disregard  of  the  provisions 
of  the  statute.  The  legislature  may  well  visit  the  breach  of 
any  law  with  a  fine,  and  it  is  immaterial  that  the  amount 
is  to  be  paid  to  the  sufferer  instead  of  into  the  State 
treasury. 

It  has  also  been  decided,  on  grounds  which  are  not  equally 
clear,  that  the  legislature  may  regulate  the  rates  of  a  railway 
company  3  for  freight  or  passengers,  or  the  charges  for  the  stor- 
age of  goods  in  a  public  warehouse.*  In  Munn  v.  Illinois,^ 
a  clause  in  the  State  Constitution  declaring  "  all  elevators 
and  warehouses,  where  grain  or  other  property  is  stored  or 
hoisted  for  a  compensation  ...  to  be  public  warehouses," 
was  followed  by  an  act  of  assembly  regulating  the  use 
of  the  buildings  dedicated  to  such  purpose,  and  provid- 
ing the  maximum  charges  for  the  storage  and  handling 
of  grain ;  and  it  was  held  that  the  statute  did  not  operate 

1  The  Pittsburg  R.  K  Co.  v.  The  S.  W.  Pennsylvania  R.  R.  Co.,  77 
Pa.  173. 

2  The  Pittsburg  R.  R.  Co.  v.  The  S.  W.  Pennsylvania  R.  R.  Co.,  77 
Pa.  173;  The  Pennsylvania  R.  R.  Co.  c.  Riblett,  66  Id.  164;  Cowen  u. 
The  New  York  &  Erie  Railway  Co.,  13  N.  Y.  42;  Smith  v.  The  Eastern 
R.  R.  Co.,  35  N.  H.  356;  Bulkley  v.  The  New  York  &  New  Hampshire 
R.  R.  Co.,  27  Conn.  479;  Thorpe  v.  The  Rutland  &  Burlington  R.  R.  Co., 
27  Vt.  143;  The  Missouri  &  Pacific  Railway  Co.  v.  Humes,  115  U.  S. 
522. 

8  The  Railroad  Commission  Cases,  116  U.  S.  307,  325;  The  Railroad 
Go.  V.  Maryland,  21  Wallace,  456;  Winona  R.  R.  Co.  v.  Blake,  94  U.  S. 
180;  The  Chicago  R.  R.  Co.  v.  Iowa,  Id.  155;  Peik  y.  The  Chicago  R.  R. 
Co.,  Id.  164. 

4  Munn  V.  Illinois,  94  U.  S.  113. 

6  94  U.  S.  113. 


DEVOTED  TO  PUBLIC  PURPOSES.  769 

as    a    deprivation,   or    conflict    with    any    of    the    constitu- 
tional prohibitions  against  interference  with  private  property .^ 

1  '*  Looking,"  said  Waite,  C.-J.,  "  to  the  common  law,  whence  came 
the  right  which  the  Constitution  protects,  we  find  that  when  private 
property  is  'affected  with  a  public  interest,  it  ceases  to  hQ  juris privati 
only.'  This  was  said  by  Lord  Chief-Justice  Hale,  more  than  two  hun- 
dred years  ago,  in  his  treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts, 
78,  and  has  been  accepted  without  objection  as  an  essential  element  in 
the  law  of  property  ever  since.  Property  does  become  clothed  with  a 
public  interest  when  used  in  a  manner  to  make  it  of  public  consequence 
and  affect  the  community  at  large.  When,  therefore,  one  devotes  his 
property  to  a  use  in  which  the  public  has  an  interest,  he  in  effect  grants 
to  the  public  an  interest  in  that  use,  and  must  submit  to  be  controlled  by 
the  public,  for  the  common  good,  to  the  extent  of  the  interest  he  has  thus 
created.  He  may  withdraw  his  grant  by  discontinuing  the  use;  but  so 
long  as  he  maintains  the  use,  he  must  submit  to  the  control.  ...  It 
matters  not  in  this  case  that  these  plaintiffs  in  error  had  built  their 
warehouses  and  established  their  business  before  the  regulations  com- 
plained of  were  adopted.  What  they  did,  was  from  the  beginning  sub- 
ject to  the  power  of  the  body  politic  to  require  them  to  conform  to  such 
regulations  as  might  be  established  by  the  proper  authorities  for  the  com- 
mon good.  They  entered  upon  their  business  and  provided  themselves 
with  the  means  to  carry  it  on  subject  to  this  condition.  If  they  did  not 
wish  to  submit  themselves  to  such  interference,  they  should  not  have 
clothed  the  public  with  an  interest  in  their  concerns.  The  same  princi- 
ple applies  to  them  that  does  to  the  proprietor  of  a  hackney-carriage  ; 
and  as  to  him  it  has  never  been  supposed  that  he  was  exempt  from  regu- 
lating statutes  or  ordinances  because  he  had  purchased  his  horses  and 
carriages  and  established  his  business  before  the  statute  or  the  ordinance 
was  adopted. 

"  It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  though  it  be  clothed  with  a 
public  interest,  and  that  what  is  reasonable  is  a  judicial,  and  not  a  'legis- 
lative, question. 

"  As  has  already  been  shown,  the  practice  has  been  otherwise.  In 
countries  where  the  common  law  prevails,  it  has  been  customary  from 
time  immemorial  for  the  legislature  to  declare  what  shall  be  a  reasona- 
ble compensation  under  such  circumstances,  or,  perhaps  more  properly 
speaking,  to  fix  a  maximum  beyond  which  any  charge  made  would  be 
unreasonable.  Undoubtedly,  in  mere  private  contracts  relating  to  mat- 
ters in  which  the  pubhc  has  no  interest,  what  is  reasonable  must  be 
ascertained  judicially.  But  this  is  because  the  legislature  has  no  control 
over  such  a  contract.  So,  too,  in  matters  which  do  affect  the  public 
interest,  and  as  to  which  legislative  control  may  be  exercised,  if  there  are 


770  REGULATION  MUST   NOT   OPERATE  AS 

Such  regulations  do  not  work  the  deprivation  which  the 
Constitution  forbids,  because  in  devoting  his  property  to  a 
public  purpose  the  owner  impliedly  agrees  that  it  shall  be 
subject  to  public  control  so  far  as  is  requisite  for  the  com- 
mon good,  and  cannot  complain  of  a  law  fixing  the  com- 
pensation for  a  service  which  is  public.  In  the  Railroad 
Commission  Cases  ^  the  established  doctrine  of  the  Supreme 
Court  of  the  United  States  was  declared  to  be,  in  view  of 
this  case  and  the  previous  course  of  decision,  that  a  State 
may  regulate  the  charges  of  railway  companies  for  the  trans- 
portation of  freight  and  passengers,  provided  the  law  does 
not  operate  as  a  regulation  of  the  interstate  or  foreign  com- 
merce which  is  exclusively  under  the  control  of  Congress  ;2 
and  that  if  the  power  can  be  surrendered,  the  words  em- 
ployed must  be  express,  or  so  clear  as  to  leave  no  doubt  as 
to  the  intention. 

no  statutory  regulations  upon  the  subject,  the  courts  must  determine 
•what  is  reasonable.  The  controlling  fact  is  the  power  to  regulate  at  all. 
If  that  exists,  the  right  to  establish  the  maximum  of  charge,  as  one  of 
the  means  of  regulation,  is  implied.  In  fact,  the  common-law  rule  which 
requires  the  charge  to  be  reasonable,  is  itself  a  regulation  as  to  price. 
Without  it  the  owner  could  make  his  rates  at  will,  and  compel  the  public 
to  yield  to  his  terms  or  forego  the  use.  But  a  mere  common-law  regu- 
lation of  trade  or  business  may  be  changed  by  statute.  A  person  has  no 
property,  no  vested  interest,  in  any  rule  of  the  common  law.  That  is 
only  one  of  the  forms  of  municipal  law,  and  is  no  more  sacred  than  any 
other.  Rights  of  property  which  have  been  created  by  the  common  law 
cannot  be  taken  away  without  due  process;  but  the  law  itself,  as  a  rule 
of  conduct,  may  be  changed  at  the  will,  or  even  the  whim,  of  the  legisla- 
ture, unless  prevented  by  constitutional  limitations.  Indeed,  the  great 
office  of  statutes  is  to  remedy  defects  in  the  common  law  as  they  are 
developed,  and  to  adapt  it  to  the  changes  of  time  and  circumstances. 
To  limit  the  rate  of  charge  for  services  rendered  in  a  public  employ- 
ment, or  for  the  use  of  property  in  which  the  public  has  an  interest,  is 
only  changing  a  regulation  which  existed  before.  It  establishes  no  new 
principle  in  the  law,  but  only  gives  a  new  effect  to  an  old  one.  We 
know  that  this  is  a  powder  which  may  be  abused ;  but  that  is  no  argu- 
ment against  its  existence.  For  protection  against  abuses  by  legisla- 
tures, the  people  must  resort  to  the  polls,  not  to  the  courts." 

1  116  U.  S.  317,  325. 

2  See  The  Railroad  Co.  v.  Maryland,  21  Wallace,  456 ;  Winona  R.  R. 
Co.  V.  Blake,  94  U.  S.  180. 


A  TAKING  WITHOUT   COMPENSATION.  771 

Such  legislation  may  be  eminently  just  as  regards  com- 
panies which  have  been  chartered  by  the  State  or  clothed  with 
the  power  of  eminent  domain,  because  grants  of  this  descrip- 
tion not  infrequently  preclude  the  competition  which  is  the 
security  against  over-charge  in  trade,  but  seems  questionable 
when  the  way  is  left  open  to  individual  enterprise,  and  may, 
by  deterring  capitalists  from  putting  their  means  within  legis- 
lative control,  end  in  raising  the  prices  which  it  is  intended 
to  keep  down.  If,  as  the  language  of  the  Chief-Justice  in 
Munn  V.  Illinois  implies,  the  power  extends  to  fixing  the 
maximum  rate  of  compensation  for  bakers  and  millers,  it  may 
extend  to  dealers  in  flour,  meat,  clothes,  and  other  articles  of 
prime  necessity,  and  tend  to  scarcity  rather  than  low  prices 
and  abundance. 

The  regulation  must  not,  it  has  been  said,  be  unreasonable, 
or  be  in  effect  a  taking  of  private  property  for  public  use 
without  compensation.  ''The  power  to  regulate  is  not  a 
power  to  destroy,  and  limitation  is  not  the  equivalent  of  con- 
fiscation." 1  Difficult  as  it  may  be  to  fix  the  limit,  we  may 
presume  that  it  would  be  transgressed  by  an  act  reducing 
the  rates  of  a  railway  company  below  the  sum  requisite  to 
defray  current  repairs  and  expenses,  and  leave  a  surplus 
equal  to  the  legal  interest  on  the  capital  expended  in  the 
construction  and  equipment  of  the  road. 

All  the  powers  of  the  States  are  held  and  must  be  exer- 
cised in  subordination  to  the  Constitution ;  and  the  right  to 
prescribe  the  rates  for  the  transportation  of  freight  and  pas- 
sengers within  a  State  must  not  so  be  exercised  as  to  operate 
on  interstate  commerce,  or  prevent  railway  companies  from 
making  such  contracts  as  they  think  proper  for  the  carriage 
of  goods  through  more  than  one  State  in  one  journey.  The 
law  was  so  held  in  the  recent  case  of  The  Wabash  R.  R.  Co. 
V,  Illinois,^  reversing  The  People  v.  The  Wabash  R.  R.  Co.,^ 
contrary  to  the  dicta  in  some  of  the  previous  instances,  which 
implied  that  so  much  of  a  railway  as  lies  within  a  State  may 

1  The  Railroad  Commission  Cases,  116  U.  S.  317,  333. 

2  118  U.  S.  557. 

8  104  111.  47.  ' 


772  MANUFACTURE   AND   SALE   OF 

be  regulated  as  she  thinks  proper,  although  the  cost  of  carry- 
ing goods  into  or  through  other  States  is  thereby  considerably 
enhanced.^ 

Broad  as  is  the  police  power,  it  is,  like  every  other,  subject 
to  the  restrictions  imposed  by  the  National  Constitution  and 
the  organic  laws  of  the  several  States.^  It  is  paramount 
when  the  case  falls  within  its  scope ;  but  the  legislature  can- 
not conclusively  establish  that  such  is  the  nature  of  the  case, 
and  their  decision  may,  where  there  is  a  plain  excess  or  usur- 
pation, be  reversed  by  the  judiciary .^  This  results  from  the 
constitutional  provision  that  no  man  shall  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law,  which 
would  be  nugatory  if  a  bald  recital  in  an  act  of  assembly 
could  oust  the  jurisdiction  of  the  courts.* 

Men  obviously  should  not  be  allowed  to  vend  poisonous 
drugs  as  cordials ;  ^  but  the  legislature  cannot  preclude  the 
appropriate  use  of  things  innocent  in  themselves  by  stigma- 
tizing them  as  poisonous,  nor  will  a  legislative  declaration 
render  that  a  nuisance  which  is  not  such  within  the  legal 
definition  of  the  term  and  according  to  the  common  experi- 
ence of  life  and  trade.^  The  common  law  right  to  destroy 
bales  of  merchandise  laden  with  infection,  or  provisions  which 
have  become  unfit  for  food,  may  be  sanctioned  by  a  statute, 
and  the  exercise  of  it  intrusted  to  the  sheriff  or  the  magis- 
trates of  a  town  ;  but  it  does  not  follow  that  fermented  liquors 
can  be  included  in  this  category  on  the  assumption  that  every 
beverage  which  contains  alcohol  is  hurtful,  even  when  used 
in  moderation. 

1  Chicago  R.  R.  Co.  v.  Iowa,  94  U.  S.  155,  163;  Peik  v.  Chicago  R.  R. 
Co.,  Id.  164,  177;  Wabash  R.  R.  Co.  v.  Illinois,  118  Id.  557,  567,  590. 
See  ante,  p.  453. 

2  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650;  Walling 
V.  Michigan,  116  Id.  446. 

8  See  Tiedeman  on  the  Limitations  of  the  Police  Power,  p.  489  (St. 
Louis,  1886). 

*  Wynehamer  v.  The  People,  13  N.  Y.  398;  In  re  Jacobs,  98  Id.  109; 
Beebee  v.  The  State,  26  Ind.  501. 

6  Ex  parte  Yung  Jon,  28  Fed.  R.  308. 

6  In  re  Jacobs,  98  N.  Y.  98, 109;  The  People  v.  Marx,  99  Id.  386;  Bee- 
bee  V.  The  State,  26  Ind.  501. 


DELETERIOUS  FOOD  AND  BEVERAGES.  773 

Nowhere  has  this  police  power  been  carried  farther,  or 
exercised  with  less  regard  for  private  rights,  than  in  the 
numerous  statutes  which  forbid  the  manufacture  or  keeping 
of  intoxicating  liquors  for  sale,  and  provide  that  the}^  may  be 
taken  forcibly  from  the  owners  and  destroyed.  "  Not  only 
does  the  trade  which  is  to-day  lawful,  become  illegal  through 
the  enactment  of  the  morrow,  but  the  property  which  the 
dealer  has  on  hand  is  declared  a  nuisance,  which  can  neither 
be  kept  nor  parted  with,  and  which  he  must  hasten  to  destroy 
if  he  would  avoid  the  rigor  of  the  criminal  law."  ^  The  au- 
thorities are  nevertheless  clearly  in  favor  of  the  power  as 
regards  property  which  is  acquired  subsequently  to  the 
enactment,  and  therefore  with  notice  of  the  restrictions 
which  it  imposes.2 

Notwithstanding  these  decisions,  we  may  believe  that  to 
warrant  the  prohibition  of  a  thing  or  calling,  it  must  not 
only  be  susceptible  of  abuse,  but  one  that  cannot  under 
ordinary  circumstances  be  beneficially  pursued  or  used.^  An 
act  to  improve  the  public  health  by  prohibiting  the  manu- 
facture of  cigars  in  tenement-houses  was  held  unconstitu- 
tional in  lie  Jacobs,  because  there  was  no  connection  be- 
tween the  end  and  the  means  employed,  and  it  did  not 
appear  that  making  cigars  was  more  injurious  under  such 
circumstances  than  when  carried  on  in  a  crowded  manu- 
factory or  workshop.  So  it  was  decided  in  The  People 
V.  Marx  that  the  manufacture  and  sale  of  oleomargarine 
could  not  be  prohibited  on  the  ground  that  it  might  be 
fraudulently  substituted  for  butter,  and  tended  by  reduc- 
ing the  price  of  that  article  to  render  the  dairies  of  the  State 
less  profitable.  Such  a  law  impairs  not  only  property,  but 
infringes  the  liberty  which,  as  guaranteed  by  the  Constitu- 
tion, "  includes  the  right  of  every  man  to  use  his  faculties 

1  See  Cooley  on  Constitutional  Limitations,  ch.  16. 

2  Bartemeyer  y.  Iowa,  18  Wallace,  129;  Lincoln  v.  Smith,  27  Vt.  328; 
Gill  w.  Parker,  31  Id.  610;  The  Beer  Co.  v.  Massachusetts,  97  U.  S.  25; 
Foster  v.  Kansas,  112  U.  S.  201;  Reynolds  v.  Geary,  26  Conn.  179;  Com- 
monwealth V.  Kendall,  12  Gushing,  414;  Commonwealth  v.  Howe,  13 
Gray,  236;  Byers  v.  Olney,  16  111.  36;  Jones  v.  The  People,  14  Id.  196. 

«  In  re  Jacobs,  98  N.  Y.  98;  The  People  v.  Marx,  99  Id.  377. 


774  THE  LEGISLATURE   CANNOT  DECLARE 

in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn 
his  livelihood  in  any  lawful  calling,  and  to  pursue  any  cus- 
tomary trade  or  avocation."  1  This  is  no  new  doctrine,  but 
derived  through  Magna  Charta,  which  was  to  a  great  extent 
declaratory  of  Teutonic  freedom.  It  was  applied  in  the 
Case  of  Monopolies,  reiterated  by  Blackstone,  came  with  the 
colonists  from  England,  and  is  embodied  in  the  organic  laws 
of  the  Union  and  the  several  States.^  Accordingly,  the  law 
will  not  allow  rights  of  property  to  be  wantonly  invaded 
under  the  guise  of  a  police  regulation  for  the  prevention 
of  disease  or  to  guard  against  a  supposed  or  apprehended 
nuisance ;  and  when  it  appears  that  such  is  not  the  real 
purpose  or  effect  of  the  ordinance,  the  courts  may  intervene 
for  the  protection  of  the  citizen.^  As  was  said  in  Beebe  v. 
The  State,*  the  legislature  cannot  enlarge  its  power  over 
property  or  pursuits  by  calling  them  a  nuisance,  or  by  enact- 
ing a  definition  of  a  nuisance  that  will  cover  them.  "  What- 
ever it  has  a  right  by  the  Constitution  to  prohibit  or  confiscate, 
it  may  thus  deal  with,  without  first  declaring  the  matter  to 
be  a  nuisance  :  and  whatever  it  has  not  a  right  by  the  Consti- 
tution to  prohibit  or  confiscate,  it  cannot  thus  deal  with,  even 
though  it  first  declare  it  a  nuisance." 

Such  a  conclusion  would  seem  preferable  to  that  reached 
in  the  State  v,  Addington,^  where  a  similar  statute  was  up- 
held as  a  legitimate  exercise  of  the  police  power  to  prohibit 
the  manufacture  of  any  commodity  which  may  be  imposed 
on  buj^ers  as  of  a  different  kind,  and  thus  become  an  instru- 
ment of  fraud.  Agreeably  to  the  view  taken  in  this  instance, 
"  The  test  of  the  reasonableness  of  a  police  regulation  pro- 
hibiting the  making  and  vending  of  a  particular  article  of 
food,  is  not  alone  whether  it  is  in  part  unwholesome  and 

1  See  In  re  Jacobs,  98  N.  Y.  98,  107;  The  People  v.  Marx,  99  Id.  377. 

2  The  Case  of  Monopolies,  11  Coke,  34;  1  Bl.  Coram.  134;  The  Butchers' 
Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  756,  762;  In  re  Jacobs,  98 
N.  Y.  98,  107. 

3  In  re  Jacobs,  98  N,  Y.  98,  110;  Austin  v.  Murray,  16  Pick.  121; 
Watertown  v.  Mayo,  101  Mass.  315. 

4  26  Ind.  501. 

s  12  Mo.  App.  214,  228;  77  Mo.  118. 


INNOCENT  THINGS  NUISANCES.  775 

injurious.  If  an  article  of  food  is  of  such  a  character  that 
few  persons  will  eat  it,  knowing  its  real  character;  if  at  the 
same  time  it  is  of  such  a  nature  that  it  can  be  imposed  upon 
the  public  as  an  article  of  food  which  is  in  common  use,  and 
against  which  there  is  no  prejudice ;  and  if,  in  addition  to 
this,  there  is  probable  ground  for  believing  that  the  only- 
way  to  prevent  the  public  from  being  defrauded  into  the 
purchasing  of  the  counterfeit  article  for  the  genuine  is  to 
prohibit  altogether  the  manufacture  and  sale  of  the  former,  — 
then  we  think  such  a  prohibition  may  stand  as  a  reasonable 
police  regulation,  although  the  article  prohibited  is  in  fact 
innocuous,  and  although  its  production  might  be  found  bene- 
ficial to  the  public,  if  in  buying  it  they  could  distinguish  it 
from  the  production  of  which  it  is  the  imitation.  .  .  .  The 
manufacturer  may  brand  it  with  its  real  name.  It  may  carry 
that  brand  into  the  hands  of  the  broker  or  commission-mer- 
chant, and  even  into  the  hands  of  the  retail  grocer;  but 
there  it  will  be  taken  off,  and  it  will  be  sold  to  the  consumer 
as  real  butter,  or  it  will  not  be  sold  at  all.  The  fact  that  in 
the  present  state  of  the  public  taste,  the  public  judgment,  or 
the  public  prejudice  with  respect  to  it,  it  cannot  be  sold 
except  by  cheating  the  ultimate  purchaser  into  the  belief 
that  it  is  real  butter,  .  .  .  stamps  with  fraud  the  entire  busi- 
ness of  making  and  vending  it,  and  furnishes  a  justification 
for  a  police  regulation  prohibiting  the  making  and  vending 
of  it  altogether." 

This  decision  was  followed  by  the  Supreme  Court  of  Penn- 
sylvania in  the  recent  case  of  Powell  v.  The  Commonwealth.^ 
The  court  cited  and  relied  on  The  Commonwealth  v.  Waite,^ 
where  the  argument  that  inasmuch  as  it  is  lawful  to  sell 
pure  milk  or  pure  water,  or  both,  the  sale  of  milk  and  water 
mixed  could  not  be  made  a  penal  offence,  was  overruled  on 
the  ground  that  since  the  sale  of  milk  adulterated  with 
water  is  customarily  practised  with  a  fraudulent  intent,  it 
is  for  the  legislature  to  judge  what  laws  are  necessary  to 
protect  the  people  against  such  frauds.  It  followed  that  the 
wholesomeness  of  the  article,  when  pure  and  genuine,  was 

1  19  Weekly  Notes,  24;  114  Pa.  265.  2  n  Allen,  264. 


776  WHAT  CONSTITUTES 

irrelevant  to  an  inquiry  which  depended  on  whetlier  it  could 
be  rendered  injurious  by  adulterations  that  could  not  readil}^ 
be  detected,  and  might  be  used  as  a  means  of  imposition. 
This  question  was  legislative.  To  hold  otherwise  would  over- 
throw the  police  power,  and  defeat  any  law  which  appeared 
unwise  to  the  judiciary.  Gordon,  J.,  dissented  on  the  ground 
that  if  the  legislature  can  prohibit  the  making  and  sale  of  one 
kind  of  pure  and  wholesome  food  because  it  may  incidentally 
be  put  to  an  injurious  use,  they  may  prohibit  the  making  and 
sale  of  every  other  kind,  and  their  power  would  be  absolute 
over  the  entire  field  of  trade  and  business.  Oleomargarine 
is  beef  fat,  churned  with  milk,  and  colored  with  anatto.  It 
is  confessedly  wholesome,  and  should  be  viewed  favorably, 
as  enabling  men  of  scant  means  to  procure  a  substitute  for 
butter,  which  will  render  their  bread  more  palatable. 

Agreeably  to  the  rule  as  laid  down  in  Wynehamer  v.  The 
People,^  if  the  legislature  may,  for  any  cause  which  is  not 
manifestly  illusory  or  absurd,  declare  that  things  of  a  cer- 
tain kind  are  hurtful,  and  shall  not  thereafter  be  made,  pur- 
chased, kept,  or  disposed  of,  they  cannot  lay  down  such  a 
rule  with  regard  to  propert}^  which  has  been  previously  ac- 
quired. What  the  statute  forbids  in  the  one  case  is  the  acqui- 
sition of  a  right ;  in  the  other  it  abrogates  a  right  which  has 
already  accrued,  and  will  be  invalid  unless  provision  is  made 
for  compensating  the  parties  who  have  expended  money  or 
labor  on  the  faith  of  the  pre-existing  law. 

Accordingly,  in  Bartemeyer  v.  Wheeler,^  Miller,  J.,  said 
that  the  solitary  exception  to  the  right  of  the  State  legisla- 
ture to  regulate  or  even  prohibit  the  sale  of  intoxicating 
drinks,  is  a  law  operating  so  rigidly  on  existing  property  as 
to  amount  to  a  deprivation ;  and  a  like  view  was  taken  in 
The  Beer  Co.  v.  Massachusetts.^ 

Sound  as  the  distinction  may  be  within  certain  limits,  it 
does  not  cover  the  entire  ground,  nor  is  it  possible  so  to 
disentangle  the  future  from  the  present.  A  law  imposing  re- 
strictions on  future  acquisitions  necessarily  impairs  present 
ownership,  because  no  one  can  sell  that  which  others  are  not 

1  13  N.  Y.  390.  2  18  Wallace,  129.  ^  97  u.  S.  25. 


777 

allowed  to  purchase  or  precluded  from  turning  to  account.  If 
the  members  of  a  community  are  forbidden  to  dispose  of  what 
they  buy,  each  is  practically  as  much  prevented  from  selling 
as  if  such  an  injunction  was  laid  in  terms.  The  guaranty 
of  life,  liberty,  and  property  in  the  Fourteenth  Amendment 
does  not  admit  of  such  a  narrow  interpretation,  in  view  of 
the  purpose  for  which  it  was  originally  framed  or  of  that  for 
which  it  was  re-enacted,  and  is,  on  the  contrary,  prospective 
as  a  whole  and  in  its  several  parts.  No  one  supposes  that 
the  barons  meant  that  the  property  which  they  subsequently 
acquired  should,  any  more  than  the  property  which  they 
then  held,  lie  open  to  the  greed  and  exactions  of  John  or  of 
the  kings  who  might  fill  his  place,  or  that  a  statute  embody- 
ing the  communistic  axiom  that  property  is  robbery  would 
have  been  less  objectionable  to  the  framers  of  our  organic 
laws  because  it  was  limited  to  things  subsequently  acquired, 
and  left  existing  rights  undisturbed.  This  is  the  more  clear 
because  the  deprivation  of  property  and  the  deprivation  of 
liberty  are  forbidden  in  the  same  clause,  and  with  one  and 
the  same  design  ;  ^  and  neither  prohibition  would  be  of  much 
avail  if  it  did  not  apply  to  future  and  prospective  as  well 
as  present  rights.  Civil  liberty  does  not  simply  mean  that 
the  citizen  shall  be  exempt  from  servitude  and  incarceration ; 
it  implies  that  he  shall  be  free  in  the  choice  and  exercise  of 
his  calling  or  profession,  and  to  follow  any  way  of  life  that  is 
not  at  variance  with  the  rules  of  morals  and  the  good  order 
generally  observed  among  civilized  nations.^  The  Fourteenth 
Amendment,  like  the  Thirteenth,  was  accordingly  intended 
as  a  continuing  guaranty  against  arbitrary  legislation  to 
each  man  during  his  allotted  span  and  through  successive 
generations.^  Such  an  inference  is  inevitable  when  we  re- 
flect that  both  prohibitions  were  drawn  in  view  of  the 
declaration  that  all  men  are  endowed  by  their  Creator  with 
"  certain  unalienable  rights,  including  life,  liberty,  and  the 
pursuit  of  happiness,"  which  implies  that  these  privileges  are 

1  Dunn  V.  Burleigh,  62  Mass.  24. 

2  The  People  v.  Marx,  99  N.  Y.  377. 

8  The  Butchers'  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  747. 


778        A  MONOPOLY  CANNOT  BE  CREATED 

inherited  by  every  child  that  comes  into  the  world,  and  are 
beyond  the  reach  of  legislation.^  A  law  consigning  children 
thereafter  born  to  servitude  would  be  as  much  a  deprivation 
as  if  it  applied  to  the  existing  generation.  Such  an  abuse  is 
impliedly  forbidden  by  the  Fourteenth  Amendment  as  well 
as  by  the  express  terms  of  the  Fifteenth  ;  and  the  principle 
applies  to  every  enactment  which  impairs  the  rights  which 
these  clauses  are  designed  to  secure.^ 

It  is  also  clear  that  an  attempt  by  Congress  or  a  State 
legislature  to  create  a  monopoly — that  is,  to  give  an  individual 
or  body  corporate  an  exclusive  right  to  the  pursuit  or  enjoy- 
ment of  a  trade  or  occupation  —  is  invalid,  because  in  entitling 
the  grantee  it  necessarily  deprives  all  others.^  This  is  not, 
as  has  sometimes  been  intimated,  merely  inferential  from  the 
spirit  and  objects  of  the  Constitution,  but  depends  on  the 
clauses  which  protect  liberty  and  life.  Monopolies  were 
declared  to  be  illegal  in  the  last  year  of  Queen  Elizabeth,  in 
a  well-known  case  reported  by  Coke ;  *  and  although  the 
power  was  subsequently  usurped  and  abused  by  her  succes- 
sor, it  was  abolished  by  Parliament  before  the  close  of  his 
reign.  The  question  arose  under  grants  from  the  Crown, 
but  was  decided  on  a  principle  which  is  obligatory  on  every 

1  See  The  Butchers'  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746, 
757;  In  re  Jacobs,  98  N.  Y.  98,  107. 

2  The  Butchers'  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746,  764. 

Such  nearly  was  the  question  which  arose  under  the  laws  prohib- 
iting the  introduction  of  slaves  into  Kansas.  Whether  the  right  of 
property  in  man  was  or  was  not  necessarily  immoral  or  injurious,  it  was 
sanctioned  by  the  Constitution  of  the  United  States  and  the  general  con- 
sent of  the  American  people,  and  could  not  be  divested  without  compen- 
sating the  owners  for  the  loss  ;  but  the  legislature  of  a  State  or  Territory 
might  well  declare  that  such  a  right  was  incompatible  with  the  welfare 
of  society  as  constituted  within  its  borders,  and  that  while  the  slaves 
which  were  already  there  should  remain  the  property  of  the  owners,  no 
others  should  be  introduced. 

3  City  of  Hudson  v.  Thome,  7  Paige,  261 ;  City  of  Chicago  v.  Rumpff, 
45  111.  90;  Norwich  Gaslight  Co.  v.  Norwich  City  Gaslight  Co.,  25  Conn. 
19,  38;  State  v.  Cincinnati  Gas  Co.,  18  Ohio  St.  262;  Logan  v.  Payne, 
43  Iowa,  524. 

4  11  Rep.  84  &. 


EXCEPT  UNDER  THE  POLICE  POWER.  779 

branch  of  our  government.  As  Popham  declared  in  the  case 
just  cited,  "A  man's  trade  maintains  his  life,  and  there- 
fore he  ought  not  to  be  deprived  or  dispossessed  of  it,  any 
more  than  of  his  life."  The  right  to  pursue  any  customary 
trade  or  vocation  is  essential  to  life  and  liberty,  and  it  is 
also  property,  —  truths  which  are  too  often  forgotten  in  these 
days  of  arbitrary  strikes  and  "  boycotting."  "  The  prop- 
erty which  every  man  has  in  his  own  labor,  as  it  is  the 
original  of  all  other  property,  so  it  is  the  most  sacred  and 
inviolable.  The  patrimony  of  the  poor  man  lies  in  the 
strength  and  dexterity  of  his  own  hands ;  and  to  hinder  his 
employing  this  strength  and  dexterity  in  what  manner  he 
thinks  proper;,  without  injuring  his  neighbor,  is  a  plain  viola- 
tion of  this  most  sacred  property.  It  is  a  manifest  encroach- 
ment upon  the  just  liberty  both  of  the  workman  and  of  those 
who  might  be  disposed  to  employ  him.''^  This  passage  is 
cited  by  Mr.  Justice  Field  in  The  Butchers'  Union  Co.  v. 
Crescent  City  Co. ,2  and  it  would  be  difficult  to  add  anything 
to  the  force  of  the  argument.  When,  however,  an  occupa- 
tion is  of  such  a  nature  that  it  will  be  dangerous  or  delete- 
rious unless  brought  under  the  control  and  supervision  of  the 
government,  the  case  falls  within  the  police  power ;  and  no 
one  can  be  prejudiced  by  the  grant  of  an  exclusive  privilege, 
because  every  one  may  be  debarred.^  Such  is  the  main 
line  of  decision  as  regards  the  sale  of  liquor ;  *  and  the  rule 
includes  every  trade  or  occupation  which  is  calculated  to  be 
injurious  unless  confined  to  certain  persons  or  localities.^  If, 
for  instance,  a  due  regard  for  health  requires  that  cattle  shall 
be  slaughtered  at  a  public  abattoir,  the  State  may  take  the 

1  Adam  Smith's  Wealth  of  Nations,  bk.  i.  ch.  10. 

2  111  U.  S.  746,  757. 

«  See  Claire  v.  Davenport,  13  Iowa,  218;  Thq  Intoxicating  Liquor 
Cases,  25  Kan.  751. 

*  Blair  v.  Kilpatrick,  40  Ind.  312;  The  State  v.  Brewers'  Liquors,  25 
Conn.  278;  The  Metropolitan  Board  v.  Bairie,  34  N.  Y.  657;  Wynehamer 
V.  The  People,  13  Id.  378;  Warren  v.  The  Mayor,  2  Gray,  98;  Barte- 
meyer  v.  Iowa,  18  Wallace,  729. 

s  See  Patterson  v.  Kentucky,  97  U.  S.  501 ;  State  v.  Addington,  77 
Mo.  118. 

VOL.   II. — 9 


780  PRIVILEGES   GIVEN  UNDER  THE 

matter  into  her  own  hands  or  intrust  it  to  a  body  corporate  or 
to  an  individual  clothed  with  power  to  do  all  that  is  requisite 
for  the  attainment  of  the  end.^  The  law  was  so  held  in  the 
Slaughter- House  Cases,^  notwithstanding  the  strenuous  dis- 
sent of  the  minority  of  the  court,  who  contended  that  while 
the  legislature  might  have  provided  that  the  entire  business 
should  be  conducted  at  a  particular  locality  and  under  the 
supervision  of  officers  appointed  for  the  purpose,  they  could 
not  shut  the  doors  on  the  public  and  confine  the  trade  of 
preparing  animals  for  food  to  a  few  favored  individuals :  if 
butchers  could  be  so  dealt  with,  so  might  bakers,  gardeners, 
or  shoemakers,  and  in  fact  every  other  trade  and  calling. 

It  follows  —  and  the  court  so  held  some  yeaj^  afterwards 
—  that  as  such  charters  rest  on  the  police  power,  and  cannot 
be  upheld  on  other  grounds,  they  are  not  contracts,  and  may 
be  repealed  by  virtue  of  the  prerogative  which  called  them 
into  being.  Nor  do  they  preclude  the  incorporation  of  an- 
other company  with  like  powers,  contrary  to  the  exclusive 
terms  of  the  former  grant.^ 

We  may  believe  that  the  conclusion  reached  by  the  ma- 
jority of  the  judges  in  the  Slaughter-House  Cases  was 
sound,  without  adopting  the  reasons  by  which  it  was  sus- 
tained. The  statute  did  not  preclude  butchers  from  doing 
their  own  slaughtering,  and  the  company  was,  on  the  con- 
trary, required,  under  a  heavy  penalty,  to  permit  every  man  to 
slaughter  in  their  buildings,  and  to  provide  ample  accommo- 
dation for  all  who  were  so  inclined.  Although  termed  a  mo- 
nopoly by  Mr.  Justice  Miller  in  delivering  the  opinion  of 
the  court,  it  did  not  deserve  that  name,  and  might,  on  the 
contrary,  be  regarded  as  a  reasonable  police  regulation,  to 
which  all  should  conform.  Nor  can  it  justly  be  said,  as  the 
same  judge  seems  to  have  supposed,  that  the  principle  of 
the  "  great  Case  of  Monopolies  "  is  inapplicable  here,  because 

1  Vandine,  Petitioner,  9  Pick.  187;  River  Rendering  Co.  r.  Behr,  7 
Mo.  App.  345. 

2  16  Wallace,  36. 

8  The  Butchers'  Union  Co.  v.  The  Crescent  City  Co.,  Ill  U.  S.  746. 
See  ante,  p.  618. 


POLICE  POWER   ARE  REVOCABLE.  781 

the  question  arose  "  in  a  contest  of  the  Commons  against 
the  monarch,"  and  that  a  State  legislature  may  grant  every 
exclusive  privilege  which  can  be  conferred  by  Parliament. 
If  such  is  the  rule,  the  Fourteenth  Amendment  was  made  to 
little  purpose. 

It  has  been  decided  on  like  grounds  that  as  markets  re- 
quire supervision  and  control  in  order  to  prevent  the  sale 
of  unwholesome  provisions  and  for  the  sake  of  cleanliness 
and  health,^  a  city  may  build  a  public  market-house,  and 
provide  that  meat  and  vegetables  shall  not  be  sold  elsewhere  ; 
and  it  followed  that  a  company  might  be  authorized  to  erect 
a  building  with  the  same  exclusive  right,  at  their  own  cost, 
and  take  the  tolls  as  compensation.  Here  also  the  grant 
was  not  a  monopoly,  but  a  restriction  of  the  privilege  of 
market  overt  to  a  particular  locality  or  building,  which  the 
city  might  furnish  directly  or  through  a  company  chartered 
for  the  purpose.  No  one  was  shut  out,  and  all  were  bound 
by  the  regulation.^ 

The  principle  that  a  privilege  which  cannot  be  shared 
by  all  may  be  granted  exclusively  to  one,  applies  to  such 
uses  of  a  street  or  highway  as  must,  from  the  nature  of 
the  case,  be  co-ordinated  in  order  to  avoid  injury  and  loss. 
There  is  nothing  in  the  manufacture  or  delivery  of  gas, 
or  the  supply  of  water,  to  render  it  the  subject  of  an  exclu- 
sive grant.  No  one  contends  for  a  monopoly  that  would 
prevent  water  from  being  carted  through  the  streets  in  barrels 
and  sold  to  persons  who  found  the  supply  from  the  public 
mains  unwholesome  or  impure,  or  that  would  preclude  the 
formation  of  a  company  for  the  preparation  and  delivery  of 
compressed  gas  or  stored  electricity,  because  the  effect  might 
be  to  lessen  the  custom  of  the  public  gas-works.  When, 
however,  it  is  proposed  to  lay  pipes  for  the  supply  of  gas 
or  water  in  a  city,  the  case  is  widely  different,  because  the 

*  See  Peirce  v.  Bartram,  Cowper,  2G9;  Buffalo  v.  Webster,  10  Md. 
100;  Wartman  v.  Philadelphia,  33  Pa.  202;  Bowling  Green  v.  Carson, 
10  Bush,  64. 

2  See  Le  Claire  v.  Davenport,  13  Iowa,  210 ;  New  Orleans  r.  Stafford, 
27  La.  Ann.  417. 


782  WHAT  MAY  BE  DENIED   TO   ALL, 

streets  are  public  property,  and  the  various  channels  must 
be  so  laid  as  not  to  interfere  with  each  other  and  the  public 
sewers,  or  endanger  the  houses  on  either  side  ;  and  the  legis- 
lature may  consequently  withhold  the  privilege  altogether, 
or  bestow  it  on  a  particular  company  or  individual.  It  has 
accordingly  been  decided  by  the  Supreme  Court  of  the 
United  States  that  such  a  charter  is  not  only  valid,  but 
may  confer  an  exclusive  right  on  the  corporators,  which 
will  be  irrevocable,  and  preclude  another  company  from 
using  the  streets  for  the  same  purpose.^  These  decisions 
would  seem  to  be  sound,  because  the  franchise  consists  in 
the  right  to  lay  pipes  in  the  highwa}^  and  not  in  the  pur- 
pose for  which  they  are  employed  ;  but  the  grant  of  such 
an  exclusive  right  has,  notwithstanding,  been  treated  as 
invalid  in  Ohio,  Connecticut,  and  Illinois.^ 

There  is  another  franchise  which  cannot  be  shared  by  all, 
and  may  therefore  be  conferred  exclusively  on  one,  without 
infringing  the  principle  which  forbids  a  monopoly.  Whether 
a  road  shall  be  opened,  and  through  whose  land,  involves 
the  consideration  of  what  is  requisite  for  the  general  good, 
and  will  be  most  convenient  for  individuals ;  and  must  there- 
fore be  determined  by  the  State  or  some  duly  authorized 
tribunal.  "We  might  consequently  infer  that  the  power  should 
remain  intact,  and  be  exercised  in  view  of  the  circumstances, 
and  that  it  could  not  be  made  the  subject  of  a  contract  which 
would  preclude  the  legislature  from  acting  as  the  occasion 
requires.  It  is  nevertheless  established  in  the  United  States 
that  the  right  to  lay  out  and  construct  a  turnpike  or  railroad 
between  certain  points  may  not  only  be  vested  in  a  natural 
or  artificial  person,  but  that  the  legislature  may  enter  into 
an  agreement  that  no  other  line  of  the  same  kind  shall  be 

1  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650;  New 
Orleans  Water  Works  v.  Rivers,  Id.  674;  Louisville  Gas  Co.  v.  Citizens* 
Gas  Co.,  Id.  683;  Memphis  v.  Water  Co.,  5  Heisk.  492;  State  v.  Milwau- 
kee Gas  Co.,  29  Wis.  454. 

2  Norwich  Gas  Light  Co.  v.  Norwich  City  Gas  Co.,  25  Conn.  19; 
State  V.  Cincinnati  Gas  Co.,  18  Ohio,  262;  City  of  Chicago  v.  Rurapff, 
45  111.  90. 


MAY  BE  CONFERRED  ON  ONE.  783 

opened  within  a  given  distance  on  either  side,  which  cannot 
be  violated  consistently  with  the  constitutional  prohibition, 
and  may  be  enforced  by  the  courts. ^ 

Such  also,  and  with  perhaps  more  reason,  is  the  estab- 
lished rule  with  regard  to  bridges,  because  they  are  substitutes 
for  ferries,  which  may  confessedly  be  granted  irrevocably  to 
an  individual ;  and  a  stipulation  in  the  charter  of  a  bridge 
that  no  other  shall  be  erected  within  a  reasonable  distance 
above  or  below  cannot  be  revoked,  except  on  compensation 
made,  and  through  the  exercise  of  the  right  of  eminent 
domain.2  This  doctrine  has  been  justified  on  the  ground 
that  necessary  and  beneficial  ends,  which  would  be  beyond 
the  unaided  means  of  the  State,  may  be  attained  with  the 
assistance  of  individuals,  who  would  not  risk  their  funds  in 
such  enterprises  if  the  fruits  would  be  snatched  from  them 
in  the  event  of  success.^ 

Contracts  which  are  laws  for  future  legislatures  and  confer 
irrevocable  rights  have  a  pecuniarj^  value,  and  it  is  not  sur- 
prising that  the  possession  of  such  a  power  exposed  the 
legislatures  of  the  various  States  to  temptations  which,  accord- 
ing to  common  report,  were  not  always  overcome.  In  Penn- 
sylvania and  some  of  the  other  States  a  corrective  was  applied 
by  enacting  that  any  five  persons  might,  on  associating  them- 
selves for  the  construction  of  a  railway  between  certain  ter- 
mini, and  complying  with  a  prescribed  routine,  become  a 
body  corporate  endowed  with  all  the  powers  requisite  for 
such  an  object,  including  the  right  to  take  the  property 
of  their  fellow-citizens  by  virtue  of  the  power  of  eminent 
domain,  build  bridges  across  navigable  rivers,  and  run  trains 
through  the  streets  of  towns  and  cities,  with  the  consent  of 

1  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650,  654; 
The  Pontchartrain  R.  R.  Co.  v.  New  Orleans  Nav.  Co.,  15  La.  Ann.  404; 
The  Boston  &  Lowell  R.  R.  Co.  v.  The  Salem  &  Lowell  R.  R.  Co., 
2  Gray,  9. 

2  The  Bridge  Proprietors  v.  The  Hoboken  Co.,  1  Wallace,  116;  The 
Binghamton  Bridge,  3  Id.  51 ;  New  Orleans  Gas  Co.  v.  Louisiana  Light 
Co.,  115  U.  S.  650,  654. 

*  See  The  Binghamton  Bridge,  3  -Wallace,  51 ;  New  Orleans  Gas  Co. 
V.  Louisiana  Light  Co.,  115  U.  S.  650,  663.     See  ante,  p.  684. 


784  MAILS  AND  TELEGKAMS. 

the  municipality.  That  this  was  the  least  of  two  evils, 
may  readily  be  conceded  ;  but  it  does  not  follow  that  it 
should  be  regarded  as  a  good,  because  two  or  more  public 
works  directed  to  the  same  end  may  hinder  and  embarrass 
each  other,  rather  than  benefit  the  community,  and  the  tolls 
which  would  sustain  one  enterprise  on  an  efficient  basis  may 
be  inadequate  for  both. 

A  business  may,  however,  be  so  far  public  and  essential  to 
the  general  welfare  that  it  cannot  properly  be  thrown  open 
to  all,  and  should  therefore  be  conducted  by  the  government 
directly,  or  through  agencies  which  it  constitutes  and  can 
control.  Such  is  confessedly  the  case  as  regards  the  mails ; 
and  telegrams  are  so  far  within  the  principle  as  to  be  subject 
to  the  local  police  power,  whether  State  or  municipal.  But 
they  are  also  instruments  of  commerce,  which,  as  regards 
interstate  and  foreign  messages,  may  be  regulated  by  Con- 
gress and  are  beyond  the  control  of  the  States ;  and  a  State 
cannot  therefore  impose  a  tax  on  telegrams  to  or  from  other 
States,  or  provide  how  they  shall  be  delivered  beyond  her 
borders.^ 

The  right  to  do  whatever  is  indispensably  necessary  for  the 
preservation  of  life,  health,  order,  or  morals,  reaches  its  high- 
est point  during  insurrection  or  invasion,  when  it  takes  the 
form  of  martial  law,  and  may  temporarily  supersede  the  rules 
of  the  common  law  and  even  the  restraints  imposed  by  the 
Constitution ,2  although  still  resting  on  the  ground  of  neces- 
sity, or  of  a  reasonable  and  probable  cause  for  believing  that 
the  necessity  exists,  and  incapable  of  being  carried  further, 
even  by  a  legislative  fiat.^  The  suspension  of  the  habeas  cor- 
pus act  is  an  instance  of  this  kind,  and  might  be  valid  in  an 
extreme  case,  though  it  were  not  recognized  by  the  Constitu- 
tion ;  and  other  instances  may  grow  out  of  the  stress  caused 

1  Telegraph  Co.  v.  Texas,  105  U.  S.  460  ;  Pensacola  R.  R.  Co.  v. 
Western  Union  Telegraph  Co.,  96  Id.  1 ;  Western  Union  Telegraph  Co. 
V.  Pendleton,  122  Id.  347.     See  ante,  p.  483. 

2  See  ante,  p.  761;  Taylor  v.  Nashville  R.  R.  Co.,  6  Caldwell,  646. 

8  The  Mayor  v.  Lord,  18  Wend.  826;  Pacific  R.  R.  Co.  v.  United 
States,  120  U.  S.  227,  234. 


POLICE  POWEB  AS  MARTIAL  LAW.  785 

by  the  presence  of  a  hostile  force.  During  the  heat  of  battle, 
or  the  defence  or  assault  of  a  fortified  town,  the  combatants 
cannot  always  pause  to  consider  where  their  shells  and  balls 
may  fall,  or  the  injuries  which  they  may  inflict  on  innocent 
persons  who  take  no  part  in  the  strife  and  are  entitled  to 
whatever  protection  the  law  can  afford.  Under  these  cir- 
cumstances the  sufferers  have  no  more  claim  to  compensation 
than  if  the  loss  were  occasioned  by  a  hurricane  or  an  earth- 
quake, and  must  set  it  down  as  due  to  causes  which  govern- 
ments cannot  prevent  and  are  not  responsible  for.^  When, 
however,  bridges,  railways,  or  buildings  are  deliberately  de- 
stroyed to  impede  the  operations  of  an  enemy,  or  provisions 
burned  to  prevent  them  from  falling  into  his  hands,  the  case 
would  seem  to  fall  within  the  constitutional  provision  which 
forbids  the  taking  of  private  property  for  public  use  without 
compensation.2  Such  is  the  inclination  of  the  Supreme  Court 
in  The  Pacific  R.  R.  Co.  v.  United  States,^  and  the  view  taken 
by  Vattel.  The  right  is,  nevertheless,  to  a  great  extent 
without  a  remedy,  unless  one  is  specifically  provided  by  Con- 
gress, because  the  government  cannot  be  sued,  and  property 
which  has  been  consumed  cannot  be  regained,  as  may  land 
which  is  occupied  under  the  right  of  eminent  domain  without 
payment. 

If  the  clause  prohibiting  the  laws  impairing  the  obligation 
of  contracts  applies  only  to  retroactive  legislation,  that  which 
forbids  deprivation  without  due  process  guards  the  future  as 
well  as  the  present  and  precludes  any  statute  taking  away 
the  remedy  for  injuries  to  persons  not  yet  born  and  rights 
subsequently  acquired,  or  rendering  it  less  effectual  by  lim- 
iting the  amount  of  damages.*  As  was  observed  in  The 
Passenger  R.  R.  Co.  v.  Boudrou,  "  the  people  have  withheld 

1  See  Pacific  R.  R.  Co.  r.  United  States,  120  U.  S.  227,  234;  Vattel, 
Droit  des  Gens,  liv.  iii.,  c.  15,  sect.  232. 

2  See  Mitchell  v.  Harmony,  13  Howard,  115, 134 ;  United  States  v. 
Russell,  13  Wallace,  623. 

8  120  U.  S.  227,  234-239. 

*  Central  R.  R.  Co.  v.  Cook,  1  Winst.  (K  C.)  L.  319;  Passenger  R. 
R.  Co.  V.  Boudrou,  92  Pa.  475,  481;  Rhines  v.  Clark,  51  Id.  96,  101. 


786  COMPENSATION. 

power  from  the  legislature  to  deprive  the  injured  parties 
of  their  remedy,  or  so  circumscribe  it  that  a  jury  can  give 
only  a  pitiful  fraction  of  the  damage  sustained.  Nothing 
less  than  the  full  amount  of  the  pecuniary  loss  which  a  man 
suffers  from  an  injury  to  him  in  his  lands,  goods,  or  person, 
fills  the  measure  secured  in  the  Declaration  of  Rights."  The 
rule  was  applied  in  this  instance,  although  the  action  was 
brought  for  a  loss  resulting  from  the  negligence  of  the  de- 
fendants' servants,  and  not  for  any  act  or  default  done  or 
committed  by  themselves. 


LECTURE    XXXV. 

Retroactive  Legislation  not  necessarily  unconstitutional.  —  Technical  De- 
fects may  be  cured  legislatively,  but  not  Defects  arising  from  a  Failure 
of  Consideration  or  the  Non-fulfilment  of  a  Condition.  —  Usurious  and 
other  Illegal  Contracts,  Invalid  Marriages,  and  Contracts  barred  by 
the  Statutes  of  Limitations  within  the  Principle,  which  also  includes 
Statutes  enlarging  the  Rules  of  Evidence.  —  A  vested  Right  cannot 
be  retroactively  divested,  or  a  Moral  converted  into  a  Legal  Obli- 
gation. —  Wills  and  Voluntary  Grants  cannot  be  confirmed  retroac- 
tively. —  The  Legislature  may  ratify  any  Act  which  they  could  have 
authorized.  —  An  Invalid  Municipal  Tax  or  Subscription  susceptible 
of  Ratification.  —  An  Express  Restraint  on  Alienation  cannot  be  set 
aside  by  Legislation,  but  it  may  supply  a  Want  of  Power  to  convey.  — 
The  Power  to  do  the  Act  must  exist  at  the  Time  of  Ratification,  and 
it  must  have  been  done  for  or  in  behalf  of  the  Body  or  Person  by 
\?hich  it  is  ratified. 

It  has  been  shown  that  a  law  confirming  an  invalid  contract, 
and  compelling  the  grantor  or  contractor  to  do  as  he  agreed, 
does  not  impair  the  obligation  which  the  Constitution  guar- 
antees; and  the  weight  of  authority  is  that  such  a  statute 
does  not  work  an  unconstitutional  deprivation  even  when  the 
effect  is  to  take  away  property  which  might  otherwise  legally 
have  been  retained.^  There  are,  nevertheless,  numerous  in- 
stances where  it  is  difficult  to  draw  the  line  between  divesti- 
ture and  confirmation. 

A  statute  imposing  a  contractual  obligation  where  no  con- 
tract has  been  made,  by  giving  a  right  of  suit,  is  obviously 
as  much  a  deprivation  as  if  the  thing  or  money  were  taken 
directly  instead  of  through  a  judicial  decree ;  and  it  may  be 
contended  that  the  case  is  substantially  the  same  where  there 
is  a  contract,  but  no  obligation  in  the  sense  in  which  the  term 
is  used  in  the  Constitution  of  the  United  States. 

1  See  antef  p.  738. 


788  RETROACTIVE  LEGISLATION  NOT 

A  promise  which  fails  for  a  want  of  consideration,  or  a 
promise  which  is  a  nudum  pactum  from  any  other  cause,  works 
no  change  in  the  relations  of  the  parties.  If  it  is  a  promise 
to  convey  land,  the  vendor  cannot  be  compelled  to  give  a 
deed  ;  if  to  pay  money,  there  is  no  debt.  And  so  of  a  contract 
that  is  forbidden  by  the  statute,  or  contrary  to  the  policy  of 
the  common  law.  A  law  assuming  retroactively  to  render 
such  a  promise  obligatory,  or  to  compel  the  promisor  to  carry 
it  into  effect,  virtually  provides  that  one  party  shall  render 
what  he  does  not  owe,  and  that  the  other  may  recover  that 
to  which  he  has  no  valid  claim.  Such  an  enactment  does  not 
impair  the  obligation  of  the  contract,  either  technically  or  in 
the  common  acceptation  of  the  term ,  but  it  may  obviously 
work  the  deprivation  which  Magna  Charta  jealously  forbids.^ 
The  logical  inference  would  therefore  seem  to  be  that 
choses  in  action,  like  things  in  possession,  must  be  tested  by 
the  law  as  it  existed  when  they  arose,  and  cannot  be  affected 
by  subsequent  legislation.  It  was  accordingly  decided  in 
The  New  York  &  Oswego  R.  R.  Co.  v.  Van  Horn^  that  where 
a  subscription  to  a  railway  by  a  private  person  fails  at  the 
time  in  not  conforming  to  the  existing  law,  it  cannot  be 
rendered  obligatory  by  a  subsequent  statute.  "  Previous  to 
the  passage  of  this  act  the  subscription  was  wholly  invalid, 
and  could  not  be  enforced  by  either  party.  If  the  effect 
claimed  be  given  to  the  act,  it  makes  a  binding  contract  be- 
tween the  parties  where  no  contract  previously  existed,  and 
in  effect  takes  $200  of  the  defendant's  property  and  transfers 
it  to  the  plaintiff,  a  private  corporation.  This  no  act  of  the 
legislature  could  do.  It  can  never  take  the  private  property 
of  one  individual,  without  his  consent,  and  give  it  to  another.^ 
Such  an  act  comes  in  direct  conflict  with  the  constitutional 
provision  that  '  no  person  shall  be  deprived  of  life,  liberty, 

1  New  York  &  Oswego  R.  R.  Co.  v.  Van  Horn,  57  N.  Y.  477. 

2  57  N.  Y.  497. 

8  Matter  of  Albany  Street,  11  Wend.  148;  Matter  of  John  and  Cherry 
Street,  19  Id.  659;  Taylor  v.  Porter,  4  Hill,  140;  Varick  v.  Smith,  5 
Paige,  137;  Cochrane  v.  Van  Snrlay,  20  Wend.  365;  Embury  v.  Conner, 
3  N.  Y.  511. 


NECESSARILY  UNCONSTITUTIONAL.  789 

or  property  without  due  process  of  law.' "  In  Reiser  v.  The 
Saving  Fund,^  a  statute,  passed  in  1859,  declared  that  the 
true  intent  of  the  act  of  1850,  regulating  building  associa- 
tions, was  that  the  premiums  bid  by  their  stockholders  for 
loans  should  not  be  deemed  usurious,  and  that  the  borrower 
should  be  liable  for  the  amount  nominally  loaned,  with 
interest  at  the  rate  prescribed  in  the  bond.  The  court  had 
previously  determined  that  no  more  could  be  recovered  from 
such  a  borrower  under  the  pre-existing  statute  than  the  sum 
actually  received  by  him,  with  interest  at  the  rate  of  six  per 
cent ;  and  the  act  of  1859  was  held  to  be  unconstitutional, 
as  varying  that  interpretation,  and  imposing  a  liability  which 
it  denied. 

There  is,  nevertheless,  a  manifest  distinction  between  im- 
posing an  obligation  to  which  the  party  concerned  never 
agreed,  and  carrying  that  to  which  he  did  agree  into  effect. 
The  obligation  of  a  contract  arises  from  the  legislative  com- 
mand that  it  shall  be  observed.  If  the  law  does  not  recog- 
nize the  contract,  or  does  not  provide  for  its  fulfilment,  there 
is  no  obligation  in  the  legal  sense  of  the  term,  although  the 
parties  have  exchanged  promises  and  are  morally  bound.^  In 
cases  of  this  description,  all  the  elements  of  a  contract  are 
present ;  but  the  law  does  not  set  its  seal  or  pronounce  the 
fiat  without  which  the  courts  cannot  proceed.  Such  an  in- 
stance may  occur  where  one  agrees  orally  to  convey  land,  or 
where  the  deed  of  a  married  woman  is  defectively  acknowl- 
edged. Under  these  circumstances  the  presumption  is  that 
the  parties  do  not  intend  a  vain  or  useless  thing,  but  that 
what  they  do  shall  be  as  effectual  as  the  nature  of  the  case 
will  permit.  It  may  therefore  plausibly  be  contended,  and 
has  been  held  in  numerous  instances,  that  the  legislature 
may  add  the  sanction  which  they  originally  withheld,  and 
that  if  they  see  fit  to  adopt  such  a  course,  it  does  not  lie  in 
the  mouth  of  the  covenantor  to  object.  If  it  be  said  that 
such  a  statute  operates  to  divest  the  title  of  the  vendor  and 
transfer  it  to  the  vendee,  the  proposition  cannot  be  denied ;  ^ 

1  39  Pa.  317,  2  See  ante,  pp.  577,  673. 

8  See  Grim  v.  Weissenberg  School  District,  57  Pa.  433. 


790  WHAT  CONTRACTS  MAY  BE 

but  it  is  a  right  which  the  former  has  agreed  to  part  with, 
and  the  latter  to  accept.  In  such  cases  there  is  a  distinctive 
element  of  consent ;  and  they  are  not,  therefore,  precedents 
where  no  express  or  implied  promise  has  been  made.^  One 
who  agrees  to  do  a  thing,  impliedly  agrees  that  he  may  be 
compelled  to  keep  his  word.  Hence  the  State  may,  agreea- 
bly to  this  view,  enforce  a  specific  performance  or  compensa- 
tion in  damages  by  affording  an  additional  remedy,  or  by 
giving  a  remedy  where  none  exists,  and  as  regards  past  con- 
tracts as  well  as  those  which  are  yet  to  come.  It  cannot, 
either  retroactively  or  prospectively,  compel  a  conveyance 
where  there  has  been  no  sale  ;  but  it  may  oblige  one  who  has 
agreed  to  sell,  and  received  the  price,  to  execute  a  deed.^ 

The  authorities  agree  that  while  the  Fifth  and  Fifteenth 
Amendments  and  the  corresponding  clauses  in  the  Constitu- 
tions of  the  various  States  do  not  preclude  legislation  for  the 
purpose  of  enforcing  antecedent  grants  or  contracts,  no  one 
can,  consistently  with  theu'  provisions,  be  compelled  to  per- 
form that  which  he  has  not  promised,  or  required  to  sur- 
render what  he  has  not  agreed  to  forego.  In  other  words,  the 
State  cannot  make  a  contract  for  the  citizen,^  but  may  give  a 
legal  sanction  to  the  contracts  which  he  has  made.  So  much 
is  clear;  and  the  difficulty  is  to  know  what  is  a  contract  within 
the  meaning  of  the  rule.  Two  theories  are  conceivable,  —  one, 
that  there  is  a  contract  wherever  the  parties  have  agreed ;  the 
other,  that  nothing  deserves  that  name  which  does  not  give 
rise  to  an  obligation  under  the  existing  law.  It  will  be  found 
on  examination  that  the  decisions  have  fluctuated  between 
these  extremes,  without  definitely  crystallizing  at  either  pole. 

The  earlier  and  not  a  few  of  the  recent  judgments  take  the 
ground  that  where  the  defect  of  the  contract  is  not  inherent, 
but  arises  from  a  statutory  disability  or  a  failure  to  comply 
with  a  legal  form,  it  may  be  cured  retroactively  by  the  legis- 
lature. Such  a  statute  does  not,  it  is  said,  conflict  with  the 
rule  that  a  man  shall  not  be  deprived  of  his  property  without 

1  Embury  v.  Conner,  3  N".  Y.  511. 

2  See  Dale  v.  JVJedcalf,  9  Pa.  108;  Menges  v.  Dentler,  33  Pa.  495. 
«  Hampshire  v.  Franklin,  16  Mass.  216. 


BBTROACTIVELY  CONFIRMED.  7^ 

due  process  of  law,  because  the  parties  have  given  their  as- 
sent, and  the  statute  merely  enforces  the  agreement.  Agree- 
ably to  this  view,  a  contract  which  is  void  under  the  existing 
law  may  be  rendered  obligatory  by  repealing  the  disabling 
enactment,^  —  at  all  events  where  this  was  passed  from  mo- 
tives of  public  policy,  and  not  for  the  protection  of  the  party 
who  relies  upon  it  as  a  defence. 

Statutes  confirming  usurious  contracts  have  been  repeat- 
edly upheld  on  this  ground,  and  the  debtor  compelled  to  re- 
pay the  principal  with  the  interest ;  ^  and  the  rule  is  not  less 
applicable  to  contracts  contrary  to  a  penal  statute  which  is 
subsequently  repealed.^  In  Lewis  v.  Mcllvain,  notes  had 
been  issued  for  the  purpose  of  being  discounted  at  an  unin- 
corporated banking  association,  and  were  consequently  void 
under  the  existing  legislation  of  Ohio,  and  a  statute  author- 
izing a  recovery  to  be  had  upon  them  was  held  valid,  as 
furthering  the  intention  of  the  parties  by  the  repeal  of  a 
prohibition  which  was  imposed  with  a  view  to  the  public 
good,  and  the  Commonwealth  might  consequently  waive. 
Such  statutes  are  remedial,  and  simply  remove  an  obstacle 
which  has  been  set  in  the  path  of  justice  with  a  view  to 
some  need  which  is  no  longer  regarded  as  conducive  to  the 
general  good.'*  In  Hess  v.  Wurtz,  an  act  passed  March  21, 
1814,  had  declared  that  "all  bills  or  notes  in  the  nature  of 
bank-notes  issued  by  any  unlawful  or  unincorporated  bank 
should  be  absolutely  null  and  void,  and  irrecoverable  in  any 
court  in  Pennsylvania."  A  subsequent  act  repealed  so  much 
of  the  prior  statute  as  prevented  the  holders  of  such  note 
from  recovery.  The  court  held  that  the  act  of  1814  must 
be  construed  in  view  of  its  object,  which  was  to  regulate 
the  circulation.     The  legislature  did  not  intend  to  annul 

1  Welch  V.  Wadsworth,  30  Conn.  149. 

2  Ewell  V.  Daggs,  108  U.  S.  143;  The  Savings  Bank  v.  Allen,  28  Conn. 
97;  Welch  v.  Wadsworth,  30  Id.  149;  Curtis  v.  Leavitt,  17  Barb.  309; 
15  N.  Y.  9;  Wood  v.  Kennedy,  19  Ind.  68. 

«  Lewis  V.  Mcllvain,  15  Ohio  St.  47;  Trustees  v.  McClery,  2  Id.  155; 
Hess  V.  W^urtz,  4  S.  &  R.  356.     See  ante,  p.  742. 

*  Hess  V.  Wurtz,  4  S.  &  R.  261;  Savings  Bank  v.  Allen,  28  Conn.  97; 
Curtis  V.  Leavitt,  15  N.  Y.  154;  Lewis  v.  Mcllvain,  16  Ohio  St.  347,  357. 


792  EFFECT  OF   REPEALING 

such  instruments  except  so  far  as  was  requisite  to  prevent 
them  from  being  used  as  money  and  passing  from  hand  to 
hand.  The  whole  tenor  of  the  enactment  showed  that  the 
intention  was,  so  far  as  unincorporated  banking  companies 
were  concerned,  punishment,  not  protection, —  to  inflict  a 
penalty  for  the  violation  of  the  statute,  and  not  to  release  the 
guilty  parties  from  the  payment  of  their  just  debts.  It  did 
not  lie  in  the  moutli  of  one  who,  like  the  defendant,  had 
broken  such  a  law,  to  object  to  the  repeal  of  so  much  of  it  as 
shielded  him  from  actions  brought  to  enforce  the  obligation 
which  he  had  incurred  in  issuing  the  notes. 

The  preponderance  of  authority,  accordingly,  is  that  a  de- 
fendant who  received  or  benefited  by  the  consideration  of  a 
contract,  may  be  compelled  to  render  the  stipulated  equiva- 
lent by  repealing  the  rule  of  policy  on  which  he  relies  as 
a  justification  for  not  fulfilling  his  agreement.  Such  is  the 
interpretation  of  the  prohibition  of  laws  impairing  the  obliga- 
tion of  contracts,  and  it  applies  under  the  view  taken  by 
the  Supreme  Court  of  the  United  States  of  the  clause  of  the 
Fourteenth  Amendment  which  forbids  deprivation  without 
due  process  of  law.^  Promises  made  for  a  usurious  considera- 
tion are,  agreeably  to  these  decisions,  merely  voidable,  even 
when  the  legislature  have  declared  them  void,  and  when  the 
prohibition  is  withdrawn  become  as  obligatory  as  if  it  had 
never  been  imposed.  The  repeal  of  a  statute  against  usury 
"  without  a  saving  clause "  cuts  off  the  defence  even  in 
actions  upon  contracts  previously  made.  Such  statutes  are 
not  "  deprivations,"  nor  do  they  impair  the  obligation  of 
contracts.^ 

In  Curtis  v.  Leavitt  ^  the  question  was  as  to  the  effect  of  a 
repeal  of  the  usury  laws  of  New  York  on  a  contract  made 
while  they  were  still  in  force.     Section  1  of  the  act  of  May 

1  Gross  V.  The  U.  S.  General  Mortgage  Co.,  108  U.  S.  477;  Ewell  v. 
Daggs,  Id.  143.     See  ante,  p.  740. 

2  Curtis  V.  Leavitt,  15  N.  Y.  9;  Savings  Bank  v.  Allen,  28  Conn.; 
Welch  V.  Wadsworth,  30  Id.  149 ;  Andrews  v.  Russell,  7  Blackford,  474 ; 
Wood  V.  Kennedy,  19  Ind.  68;  Danville  v.  Pace,  25  Gratt.  1;  Parmelee 
V.  Laurence,  48  111.  331 ;  Woodruff  v.  Scruggs,  27  Ark.  26. 

8  15  N.  Y.  9. 


STATUTES  AGAINST  USURY.  793 

15,  1837,  forbade  usurious  contracts  and  declared  them  void ; 
and  section  5  provided  that  whenever  any  bond,  bill,  note, 
etc.,  was  taken  in  violation  of  the  act,  the  Court  of  Chancery 
should  order  it  to  be  surrendered  and  cancelled.  Section  6 
made  the  taking  of  usury  a  misdemeanor  punishable  by  fine 
and  imprisonment.  It  was  subsequently  enacted  that  "  no 
corporation  shall  interpose  the  defence  of  usury  in  any  ac- 
tion." Brown,  J.,  said  the  effect  of  this  enactment  was  not 
to  create  a  debt,  as  had  been  alleged  by  the  appellant's  coun- 
sel, for  that  proposition  assumed  that  there  was  no  debt, — 
the  very  point  in  dispute.  Prima  facie,  at  least,  a  debt  arose 
from  the  written  obligation  of  the  defendant,  and  there  was 
unquestionably  a  moral  obligation  to  pay.  The  statute  might 
well  operate  retrospectively,  because  it  did  not  take  away 
any  vested  right.  The  defence  given  by  the  usury  laws 
was  an  inchoate  right  which  might,  agreeably  to  the  princi- 
ple laid  down  in  The  People  v.  Livingston,^  be  abrogated 
at  any  time  before  it  was  perfected  by  judgment.  Chief-Jus- 
tice Savage  had  there  said,  in  delivering  judgment,  that  it 
is  competent  for  the  legislature  to  repeal  any  act  upon  which 
a  suit  has  been  brought,  and  if  the  repeal  is  absolute,  the 
suit  is  at  an  end.  For  instance,  an  existing  statute  prohibits 
gaming,  and  allows  an  action  to  recover  back  money  won 
at  play.  An  action  is  brought  and  ready  for  trial.  The 
day  before  the  circuit,  the  legislature  repeals  the  act.  The 
suit  dies  because  the  court  has  no  jurisdiction,  and  the 
party  has  no  right  to  recover  the  money.  Such  right  did 
exist,  subject  to  the  contingency  of  obtaining  a  judgment, 
and  such  jurisdiction  too  existed ;  but  both  have  been  taken 
away  because  the  means  of  enforcing  the  right  no  longer  ex- 
ist. So  a  borrower  has  no  vested  interest  in  the  penalty 
or  forfeiture  which  follows  the  proof  of  usury  in  an  action 
where  that  defence  is  interposed.  Whatever  right  he  has 
is  contingent  upon  the  fact  of  the  usury  being  established 
upon  the  trial.  This  the  repealing  act  declares  shall  not  be 
done.  It  makes  no  difference  whether  the  forfeiture  is  given 
to  the  borrower  to  be  recovered  in  an  action,  as  under  the 

1  6  Wend.  526. 


794  CONFIRMATION   OF  GAMING 

gaming  statutes,  or  whether  it  is  given  him  by  way  of  de- 
fence in  an  action  to  enforce  the  contract.  In  either  case  it 
is  the  penalty  which  the  law  imposes  upon  the  lender  which 
the  borrower  seeks  to  appropriate  to  his  own  use  ;  and  the  act 
under  which  he  hopes  to  effect  this  must  be  subject  to  the 
same  rules  of  construction  as  other  penal  statutes. 

These  refined  distinctions  seem  questionable,  under  the 
view  taken  in  Westervelt  v,  Gregg.^  A  right  to  sue  for  and 
recover  is  a  vested  right,  or  at  all  events  property  which 
cannot  be  abrogated  without  due  process  of  law;  and  equally 
so  whether  the  right  arose  at  common  law  or  was  conferred 
by  statute.  Money  lost  at  play  cannot  be  recovered  back 
without  the  aid  of  legislation;  but  when  such  an  act  has  been 
passed,  and  demands  have  arisen  under  it,  they  cannot  be 
annulled  consistently  with  the  constitutional  prohibition. 

If,  as  may  be  inferred  from  the  dicta  in  Curtis  v.  Leavitt, 
the  repeal  of  the  statutes  against  gaming  would  not  only 
preclude  the  loser  from  recovering,  but  entitle  the  winner 
to  enforce  the  wager  in  New  York,  such  a  result  would 
not  follow  in  Pennsylvania,  where  gaming  contracts  are  re- 
garded as  invalid  on  grounds  of  public  policy  and  morals, 
aside  from  legislation,  and  no  case  goes  to  the  extent  of  hold- 
ing that  an  immoral  contract  can  be  confirmed  retroactively .^ 

I  may  add  that  Curtis  v.  Leavitt  does  not  necessarily  con- 
flict with  Reiser  v.  The  Savings  Fund,  because  the  usur}^ 
laws  of  Pennsylvania,  unlike  those  of  New  York,  do  not 
impose  a  penalty,  and  merely  provide  that  the  creditor  shall 

1  12  N.  Y.  202. 

2  In  Campbell  v.  Holt,  115  U.  S.  620,  the  Supreme  Court  of  the  United 
States  carried  this  line  of  decision  to  the  extreme  of  holding  that  although 
the  removal  of  the  bar  of  the  statute  of  limitations  to  a  suit  brought  for 
the  recovery  of  real  or  personal  property  after  it  has  finally  attached  is  a 
deprivation  without  due  process  of  law,  Dickerson  v.  Colgrove,  100  U.  S. 
573,  578;  Bicknell  y.  Comstock,  113  Id.  149,  the  rule  does  not  apply  to 
pecuniary  obligations,  and  a  debtor  who  has  destroyed  his  receipts  in  the 
belief  that  the  time  has  passed  when  he  can  be  called  on  to  prove  that 
the  obligation  has  been  discharged,  may  be  sued  and  a  recovery  had 
against  him  on  a  demand  which  may  be  unjust,  and  which  he  had  every 
reason  to  regard  as  at  an  end. 


CONTRACT   OR   INVALID   MARRIAGE.  795 

not  recover  more  than  the  amount  which  he  has  really  loaned, 
with  six  per  cent  interest ;  and  hence  a  statute  undertaking  to 
impose  a  greater  liability  may  well  be  regarded  as  a  •■'  depri- 
vation "  within  the  meaning  of  the  constitutional  guaranty .^ 

In  the  Savings  Bank  v.  Allen,^  the  rule  was  laid  down 
broadly  by  the  Supreme  Court  of  Connecticut  in  the  follow- 
ing terms :  "  Where  the  object  and  effect  of  a  retroactive 
statute  is  to  correct  an  innocent  mistake,  remedy  a  mischief, 
execute  the  intention  of  the  parties,  and  promote  justice,  then, 
both  as  a  matter  of  right  and  of  public  policy  affecting  the 
peace  and  welfare  of  the  community,  the  law  should  be  sus- 
tained." This  principle  was  laid  down  in  Goshen  v.  Stoning- 
ton,^  and  has  been  consistently  adhered  to  in  Connecticut.* 

If  this  language  is  to  be  taken  literally,  —  and  the  legisla- 
ture may  intervene  retroactively  whenever  in  their  judgment 
such  legislation  is  requisite  to  correct  mistakes  or  afford 
relief  against  technical  and  statutory  defects  in  deeds  and 
contracts,  —  the  charter  is  a  broad  one,  and  extends  to  every 
instance  where  intention  fails  of  effect  through  a  want  of 
form.  It  was  accordingly  decided  in  Goshen  v.  Stoning- 
ton^  that  a  marriage  which  has  been  celebrated  before  a, 
person  who  is  not  legally  authorized  to  perform  the  cere- 
mony, may  be  rendered  valid  retroactively  by  the  legislature. 
It  was  conceded  that  the  contract  as  originally  made  was 
devoid  of  legal  obligation,  and  neither  bound  the  parties  to 
live"  together  nor  precluded  them  from  contracting  another 
marriage.  Hosmer,  C.-J.,  said  it  might  seem  to  be  an  ex- 
treme exercise  of  power  to  make  two  individuals  man  and 
wife  wlio  were  not  so  previously,  but  that  this  did  not 
transcend  the  power  of  the  legislature  where  the  parties  had 
given  their  consent  per  verba  de  proesenti  with  intent  to 
solemnize  the  marriage,  and  tlie  obstacle  arose  from  a  sta- 
tutory or  common-law  rule  which  might  be  repealed. 

^  See  ante,  p.  707,  .  »  4  Conn.  224. 

2  28  Conn.  102. 

*  Bridgeport  v.  Hubbell,  5  Conn.  237;  Mather  v.  Chapman,  6  Id.  55; 
Beach  i'.  Walker,  Id.  160;  Norton  v  Pettibone,  7  Id.  319;  Booth  v.  Booth, 
Id.  350;  Savings  Bank  v.  Bates,  8  Id.  505. 

6  4  Conn.  224. 

VOL.    II. —  10 


796  INVALID   DEEDS  AND  PARTITIONS. 

In  Goshorn  v.  PurcelU  the  question  was  whether  a  statu- 
tory grant  of  jurisdiction  to  correct  mistakes  and  errors  in 
the  deeds  of  married  women  was  valid  as  to  conveyances 
executed  before  the  statute,  and  would  authorize  a  decree 
supplying  an  omission  in  the  granting  clause  of  such  an  in- 
strument. The  court  held  that  if  the  deed  was  inoperative, 
the  defect  was  merely  one  of  form.  The  grantor  intended 
to  transfer  the  right  of  property,  and  the  grantee  gave  value 
in  the  belief  that  it  had  passed.  The  grantor  had  the  capa- 
city to  convey  the  land,  and  had  attempted  to  do  so  in  the 
mode  prescribed  by  law,  and  could  not  equitably  take  advan- 
tage of  her  mistake  to  deprive  the  grantee  of  what  she  had 
agreed  to  give  and  he  was  entitled  to  receive.  In  Kearney 
V.  Taylor,^  land  which  had  been  sold  by  order  of  the  Orphans' 
Court  under  proceedings  in  partition  was  conveyed  to  one 
whose  name  did  not  appear  as  a  purchaser  in  the  report  made 
to  the  court,  but  who  took  in  trust  for  the  actual  buyers 
under  an  agreement  to  that  effect  with  them.  The  Supreme 
Court  of  New  Jersey  subsequently  held  that  such  convey- 
ances were  invalid ;  and  the  legislature  thereupon  enacted 
that  on  proof  made  to  the  satisfaction  of  the  court  or  jury 
before  whom  any  such  deed  or  conveyance  was  offered 
in  evidence  that  it  had  been  executed  in  good  faith,  the 
same  should  be  as  effectual  as  "though  it  had  been  made 
to  the  purchaser  or  purchasers  reported  to  the  court."  The 
question  was  ultimately  brought  before  the  Supreme  Court 
of  the  United  States,  which  upheld  the  statute.  So  it  has 
been  held  in  numerous  instances  that  the  legislature  may 
confirm  sales  made  by  tax-collectors,  sheriffs,  administrators, 
executors,  trustees,  and  other  persons  acting  in  pursuance 
of  an  authority  conferred  by  law,  which,  though  good  in 
substance,  have  yet  failed  through  non-compliance  with  some 
preliminary  or  legal  form,  or  even  from  a  want  of  jurisdic- 
tion in  the  tribunal  by  which  they  were  decreed.^ 

1  11  Ohio  St.  641. 

2  15  Howard,  494. 

8  Wilkinson  v.  Leland,  2  Peters,  660;  Watkins  v.  Holman,  16  Id.  25; 
Menges  v.  Wirtman,  1  Pa.  218. 


INVALID  sheriff's  SALE.  797 

On  the  other  hand,  it  is  not  less  clear,  and  seems  to  be  now 
generally  conceded,  that  the  want  of  consent  cannot  be  sup- 
plied by  a  statute.  A  moral  obligation  cannot  be  converted 
into  a  legal  obligation  where  there  has  been  no  agreement, 
express,  or  implied  from  some  act  or  undertaking  of  the  per- 
son whom  it  is  sought  to  bind,  nor  can  he  legislatively  be 
compelled  to  pay  for  a  benefit  which  has  been  conferred 
against  his  will,  or  on  the  ground  that  he  was  morally  bound, 
and  ought  to  have  agreed.^  In  Menges  v.  Wirtman  land  was 
irregularly  taken  in  execution  and  sold  under  a  writ  issued 
in  an  adjoining  county.  An  act  of  assembly  having  been 
passed  to  confirm  the  sale,  it  was  held  that  as  the  proceeds 
of  the  execution  went  to  pay  the  owner's  debts,  he  was 
morally  bound  to  compensate  the  purchaser,  and  the  legisla- 
ture might  enforce  the  obligation.  When,  however,  a  like 
question  arose  in  Dale  v,  Medcalf,^  under  a  sale  made  within 
the  county,  but  after  the  return  day  of  the  writ,  Burnside,  J., 
said  that  *'the  proceeding  was  merely  void,  and  that  the  le- 
gislature could  not  take  the  property  from  the  person  to 
whom  it  regularly  belonged.  By  the  'law  of  the  land'  was 
meant  the  law  of  the  individual  case  as  established  on  a  fair 
open  trial  or  an  opportunity  given  for  such  a  trial  by  due 
process  of  law."  This  decision  gave  the  rule  in  Pennsylva- 
nia;  and  when  the  doctrine  of  Menges  v.  Wirtman  was  again 
brought  under  consideration,  the  court  overruled  its  former 
decision  on  the  ground  that  every  right  must  be  determined 
by  the  rules  existing  at  the  time  when  it  arises,  and  that  a 
retroactive  statute  is  not  **  the  law  of  the  land  "  or  the  "  due 
course  of  law  "  which  the  Constitution  requires.  If,  as  was 
conceded,  a  sale  of  lands  in  Northumberland  County,  under 
a  writ  issued  in  Lycoming  County,  did  not  pass  the  title,  a 
subsequent  act  of  assembly  could  not  remedy  the  defect.^ 
It  would  likewise  appear  that  a  grant  which  has  failed  for 
want  of  form  cannot  be  legislatively  confirmed  in  the  absence 
of  a  consideration,  because  under  these  circumstances  the 
grantee  is  a   mere  volunteer,  and  has  no  equity  to  compel 

1  Menges  v.  Wirtman,  1  Pa.  218.  2  9  Pa.  108. 

«  Menges  v.  Dentler,  33  Pa.  495.     See  ante,  p.  727. 


798  INVALID  EXECUTORY  CONTRACTS. 

his  benefactor  to  complete  what  has  been  left  unfinished. 
The  principle  was  applied  in  Greenough  v.  Greenough^  to  a 
devise,  and  is  equally  applicable  to  a  voluntary  grant.  "  The 
distinction,"  said  Gibson,  C.-J.,  "  between  a  purchaser  and  a 
volunteer  is  the  only  ground  left  us  on  which  to  found  a 
practical  limitation  of  special  legislation.  If  there  be  any 
exception,  it  is  where  the  consideration  is  natural  love  and 
affection ;  and  the  question  is  raised  after  the  grantor's  death 
by  a  descendant  who  will  be  unprovided  for  if  the  gift  is  not 
carried  into  effect." ^ 

The  better  opinion  would  also  seem  to  be  that  the  legislature 
cannot  intervene  retroactively  to  confirm  an  executory  con- 
tract, or,  more  accurately,  that  the  person  who  asks  for  such 
relief  must  have  performed  his  part  of  the  agreement.  For 
when  nothing  has  been  done  on  either  side,  and  the  contract 
is  so  far  wanting  in  form  as  not  to  be  obligatory,  there  is 
no  equitable  or  legal  ground  for  interfering  with  the  ordinary 
course  of  law.  An  act  ratifying  an  oral  contract  for  the  sale 
of  land,  and  empowering  the  courts  to  decree  a  specific  per- 
formance, would  therefore  presumably  be  unconstitutional, 
as  depriving  the  vendor  of  his  property,  contrary  to  the  due 
course  of  law.  But  there  would  be  a  material  difference  if 
the  remedy  were  confined  to  cases  where  the  purchase-money 
had  been  paid  in  full ;  and  it  might  then  be  regarded  as 
an  extension  of  the  principle  on  which  equity  enforces  such 
contracts,  where  the  buj^er  has  gone  into  possession,  and 
the  refusal  to  convey  operates  as  a  fraud. 

Whatever  the  rule  may  be  where  the  contract  is  invalid, 
we  may  believe  that  where  it  is  not,  and  the  difficulty  is 
one  of  proof,  it  may  be  obviated  by  legislation.  A  deed 
denoting  an  intention  to  convey,  and  founded  on  a  sufficient 
cause,  but  which  fails  through  a  mistake  or  a  clerical  error 
on  the  part  of  the  conveyancer,  or  because  it  is  not  properly 
acknowledged  or  recorded,  may  consequently  be  rendered 
operative  by  a  subsequent  statute,  although  the  grantor  is 

1  11  Pa.  489,  495. 

2  See  1  Leading  Cases  in  Equity  (4  Am.  ed.)  420;  Ellison  v.  Ellison, 
6  Vesey,  656.     See  York  v.  Patton,  13  Pa.  278,  285. 


LAWS   REGULATING   EVIDENCE.  799 

a  married  woman  and  unable  to  contract  at  common  law.^ 
The  acts  providing  that  the  deeds  of  married  women  shall 
be  valid,  notwithstanding  any  defect  in  the  certificate  of 
the  judge  or  magistrate  before  whom  they  were  acknowledged, 
may  be  referred  to  this  head_,  because  the  certificate  is  no 
part  of  the  conveyance,  and  merely  operates  as  evidence 
that  the  wife  declared,  on  being  examined  separately  and 
apart,  that  she  executed  the  instrument  of  her  own  free 
will  and  accord,  without  undue  influence  or  coercion.  Gib- 
son, C.-J.,  said  that  the  act  dealt,  not  with  the  contract,  but 
with  the  evidence  of  it,  in  which  the  parties  whose  interests 
were  affected  could  have  no  vested  right.  An  act  to  change 
the  rule  requiring  subscribing  witnesses  to  be  called,  could 
not  be  said  to  affect  the  right  unless  such  attestation  were,  as 
in  the  case  of  a  will  under  the  statute  of  frauds,  an  essential 
ingredient,  without  which  the  instrument  would  be  void. 
Here  the  certificate  was  not  an  essential  part  of  the  acknowl- 
edgment, but  a  formal  means  of  proof ;  and  in  substituting  a 
different  form  the  legislature  dispensed  with  no  substantial 
part  of  the  transaction,  and  simply  provided  that  a  certifi- 
cate* reciting  that  the  feme  covert  had  appeared  before  the 
proper  oflScer  and  acknowledged  the  instrument  to  be  her  act 
and  deed,  should  be  at  least  prima  facie  evidence  that  the 
acknowledgment  had  been  duly  made. 

It  results  from  these  decisions  that  a  law  removing  the 
obstacle  which  renders  an  instrument  inadmissible  in  evi- 
dence cannot  be  treated  as  a  deprivation,  although  the  effect 
is  to  enable  the  grantee  or  covenantee  to  enforce  a  claim 
which  would  otherwise  have  failed  for  want  of  proof;  but 
the  application  of  the  principle  is  not  infrequently  embar- 
rassed by  the  difficuHy  of  distinguishing  form  from  substance, 
the  remedy  from  the  right,  the  evidence  by  which  the  exist- 
ence of  a  grant  is  established,  from  the  grant  itself.^  That 
which  cannot  be  proved,  for  legal  purposes  at  least,  does  not 
exist;  and  a  statute  authorizing  it  to  be  substantiated  by  new 

1  Tate  V.  Stooltzfooss,  16  S.  &  R.  35;  Watson  v.  Mercer,  8  Peters,  88. 
See  ante,  p.  741. 

=2  Moore  v.  State,  43  N.  J.  Law,  205. 


800  THE  REGULATION  MUST  NOT 

and  unusual  means  of  proof,  may  be  regarded  as  conferring  a 
right  rather  than  affording  a  remedy.  A  law  providing  that 
testimony  shall  not  be  excluded  on  the  ground  of  interest, 
or  permitting  the  plaintiff  and  defendant  to  appear  as  wit- 
nesses, will  not  be  unconstitutional,  even  when  it  operates 
injuriously  on  one  or  other  of  the  parties  to  an  antecedent 
controversy.^  The  same  remark  may  be  made  with  regard 
to  laws  enabling  parol  evidence  to  be  given,  although  the 
contract  is  in  writing  and  under  seal,^  or  rendering  the  protest 
of  a  notary  evidence  of  the  facts  therein  set  forth/"^  For  a 
like  reason  it  may  be  enacted  retrospectively  that  the  recitals 
in  a  deed  executed  in  pursuance  of  a  statutory  authority  shall 
be  prima  facie  evidence  that  the  requisites  of  the  law  were 
complied  with.*  And  as  the  right  to  enlarge  implies  the  right 
to  restrain,  existing  means  of  proof  may  be  taken  away  if 
other  and  sufficient  means  are  left.^ 

The  right  to  abridge  the  period  within  which  suit  may  be 
brought  on  a  past  demand,  is  not  less  clear.  The  restriction 
must  not  operate  as  a  virtual  denial  of  all  remedy  by  not 
leaving  a  reasonable  interval  within  which  to  assert  the 
claim,  but  may  be  valid  if  this  principle  is  observed.^  And 
in  Berry  v.  Ramsdall  a  statute  which  allowed  only  thirty 
days  in  which  to  prosecute  an  existing  demand  was  held 
unreasonable  and  void. 

While  the  legislature  may  admit  evidence  which  was  shut 
out  under  the  pre-existing  law,  or  shift  the  burden  of  proof 
by  declaring  that  evidence  of  a  certain  description  shall 
be  sufficient  prima  faciei*  they  cannot  render  it  conclusive, 
or  debar  the  opposite  party  from  adducing  proof  in  reply ; 
because  this  would  in  effect  be  to  extinguish  the  right  under 

1  Rich  V.  Flanders,  39  N".  H.  333. 

2  Gibbs  V.  Gale,  7  Md.  76. 

8  Fales  V.  Wads  worth,  23  Me.  553. 

4  Hand  v.  Ballou,  9  N.  Y.  543;  Adams  r.  Beal,  9  Iowa,  61;  Wright 
r.  Dunham,  13  Alich.  414. 

6  Hickox  V.  Tallman,  38  Barb.  608. 

«  Berry  v.  Ramsdall,  4  Metcalf  (Ky.)  292;  Call  r.  Hagger,  8  Mass. 
423;  Price  v.  Hopkins,  13  Mich.  318. 

7  See  The  Northern  Liberties  v.  St.  John's  Church,  13  Pa.  104. 


DESTROY  THE  RIGHT.  801 

the  pretence  of  regulating  the  procedure.  If  such  an  act  does 
not  impair  the  obligation  of  the  grant  or  contract,  it  manifestly 
precludes  the  hearing  in  due  course  of  law  which  the  Consti- 
tution of  the  several  States  requires,  and  may  be  thought  not 
less  contrary  to  the  Article  which  prohibits  ex  post  facto  legis- 
lation.^ It  would  also  appear  that  where  there  is  no  contract 
binding  one  party  to  convey,  and  entitling  the  other  to  receive, 
and  the  right  in  question  is  purely  statutory,  depending  on 
forms  which  have  not  been  observed,  the  defect  is  vital,  and 
beyond  the  reach  of  retroactive  legislation. 

A  law  giving  an  additional  remedy  for  an  existing  right  or 
contract  obviously  is  not  a  deprivation  so  long  as  its  operation 
is  confined  to  the  parties,  although  the  effect  is  to  charge  the 
property  of  the  person  in  default  with  a  lien  which  could  not 
have  been  obtained  under  the  pre-existing  law  without  pro- 
ceeding to  judgment.2  And  as  this  may  be  done  directly,  so 
it  may  be  done  by  ratifying  a  proceeding  which  has  failed 
through  nonconformity  to  the  act  under  which  it  was  in- 
stituted.2  It  was  accordingly  decided  in  Bolton  v.  Johns* 
that  as  the  legislature  might  have  authorized  a  contractor 
for  the  erection  of  a  building  to  file  a  claim  for  the  amount 
due,  they  might  ratify  the  claim  which  he  had  already  filed 
as  it  regarded  the  owner  for  whom  the  work  was  done  and 
materials  furnished,  although  not  against  an  intervening  pur- 
chaser ;  and  a  like  view  was  taken  in  Schenly  v.  The  Com- 
monwealth^ of  an  act  of  assembly  declaring  that  a  municipal 
claim  which  had  been  filed  by  the  city  should  be  good  not- 
withstanding a  failure  to  record  the  ordinance  under  which 
the  work  was  done,  as  the  law  prescribed. 

In  Mercer  v.  Watson,^  Gibson,  C.-J.,  intimated  that  if  a 
particular  mode  of  attestation  was  made  essential  by  statute 

1  Case  V.  Dean,  16  Mich.  13;  White  v.  Flynn,  23  Ind.  46;  Allen  y. 
Armstrong,  16  Iowa,  508 ;  Young  v.  Beardslee,  11  Paige,  93.  See  County 
Seat  of  Linn  County,  15  Kan.  500. 

2  School  Directors  v..  Reed,  2  Pearson,  187;  Supervisors  of  Sudbury  v. 
Denis,  96  Pa.  400.     See  ante,  Lecture  XXXIIL 

8  See  Hepburn  v.  Curts,  7  Watts,  300. 

*  5  Pa.  145.  e  1  Watts,  330,  357. 

6  36  Pa.  29. 


802  CONFIRMATION  OF  INVALID  ' 

to  the  passage  of  the  right,  and  not  merely  evidence  that  it 
had  passed,  as  in  the  case  of  the  attestation  of  a  will  under 
the  statute  of  frauds,  the  want  of  it  could  not  be  supplied 
by  a  subsequent  act  of  assembly.  In  Greenough  v.  Green- 
ough  ^  it  was  accordingly  decided  that  an  act  declaring  that 
every  last  will  and  testament  to  which  the  testator  had  made 
his  mark  or  cross  should  be  valid,  did  not  operate  retroac- 
tively for  the  support  of  a  devise  where  the  rights  of  the 
parties  had  become  fixed  by  the  death  of  the  testator  before 
the  law  was  changed.  If  the  act  was  to  be  regarded  as  a 
judicial  exposition  of  the  pre-existing  law,  it  was  unconsti- 
tutional, as  encroaching  on  the  province  of  the  courts ;  and 
viewed  as  operating  to  divest  the  title  which  had  descended 
to  the  heirs,  it  was  contrary  to  the  provision  that  no  man 
shall  be  deprived  of  his  property  except  in  the  due  course  of 
law.  The  same  view  was  taken  in  Snyder  v.  BulP  and 
McCarty  v.  Hoffman.^  These  cases  may  be  regarded  as  indi- 
cating that  where  the  right  depends  solely  on  an  invalid 
instrument,  and  there  is  no  other  ground  on  which  it  can 
be  sustained,  the  defect  cannot  be  cured  by  subsequent 
legislation. 

A  will  is  a  statutory  conveyance,  and  if  the  legislature 
cannot  correct  a  formal  defect  in  such  an  instrument,  a  deed 
of  gift  should  follow  the  same  rule.  To  justify  the  interven- 
tion of  the  judiciary  or  of  the  legislature  to  reform  a  written 
instrument,  the  complainant  should  have  some  right  inde- 
pendently of  the  writing,  and  the  respondent  be  under  an 
obligation  to  convey,  —  which  cannot  be  said  of  a  devisee 
and  the  heir,  who  are  both  volunteers,  and  may  each  fairly 
insist  on  the  letter  of  the  law.  Such  also,  agreeably  to  the 
view  taken  in  Menges  v.  Dentler,*  is  the  relation  between 
a  debtor  whose  property  has  been  taken  in  execution,  and  a 
purchaser  at  the  sheriffs  sale. 

The  principle  has  accordingly  been  said  in  some  instances 
to  be  analogous  to  that  under  which  chancery  enforces  the 
performance  of  contracts  which  have  failed  through  a  non- 

1  11  Pa.  489.  8  23  Pa.  507. 

2  17  Pa.  58.  4  See  ante,  p.  727. 


WILL  OR  GIFT.  803 

compliance  with  legal  forms.^  And  hence,  as  Marshall, 
C.-J.,  intimated  in  Fletcher  v.  Peck,  it  is  inapplicable  to  per- 
sons who  buy  on  the  faith  of  the  existing  law ;  for  as  such  a 
purchaser  is  not  a  party  to  the  contract  which  it  is  the  object 
of  the  statute  to  confirm,  and  has  not  given  his  consent  in 
any  form,  there  is  no  ground  depriving  him  of  a  title  which 
is  equitably  as  well  as  legally  his  own."^ 

In  Green  v.  Drinker  ^  both  parties  claimed  under  the  same 
grantors,  one  through  a  deed  which  was  defectively  acknowl- 
edged, and  though  recorded,  did  not  operate  as  notice  ;  the 
other  under  a  mortgage  executed  subsequentlj^  to  the  deed, 
but  prior  to  the  passage  of  a  statute  which  purported  to  cure  the 
defect  of  the  acknowledgment.  The  court  held  that  the  deed 
was  not  duly  recorded,  and  was  consequently  invalid  as  against 
the  mortgagee,  and  that  as  he  had  given  value  without  notice, 
there  was  nothing  to  bind  his  conscience  or  render  it  incum- 
bent on  him  to  forego  the  lien  which  he  had  acquired.  The 
statute  was  binding  legally  as  between  the  original  parties, 
but  could  not  avail  against  a  bona  fide  purchaser. 

Although  such  a  statute  cannot  defeat  intervening  rights, 
it  inay  be  valid  as  regards  one  who  buys  after  it  has  been 
enacted.  In  Journeay  v,  Gibson  *  the  question  was  like  that 
m  Green  v.  Drinker,  except  that  the  statute  which  confirmed 
the  plaintiff's  mortgage  was  anterior  to  the  mortgage  under 
which  the  defendant  claimed,  and  the  plaintiff  recovered  al- 
though the  defendant  had  no  actual  notice  of  the  prior  mort- 
gage, and  was  not  aware  that  the  legislature  had  remedied 
the  defect. 

One  who  buys  with  notice  that  the  property  in  question 
has  been  sold  or  encumbered  with  the  view  of  taking  advan- 
tage of  a  technical  defect,  is  not  a  bona  fide  purchaser,  and 
may  be  deprived  of  what  he  has  unjustly  acquired,  by  retro- 

1  Chestnut  v.  Shane's  Lessee,  16  Ohio,  599 ;  Berdard  Township  v. 
Stebbins,  109  U.  S.  341,  351. 

2  See  Southard  v.  Southard,  2  Dutcher,  13;  Thompson  v.  Morgan, 
6  Minn.  292;  Brinton  v.  Subers,  12  Iowa,  289;  Greenough  v,  Greenough, 
11  Pa.  489,  495. 

«  7  W.  &  S.  440.  *  56  Pa.  57. 


804  INVALID  LIEN  CANNOT  BE 

actively  confirming  the  prior  grant  or  mortgage  ;  but  the  rule 
does  not  apply  to  a  purchase  made  with  notice  of  a  defective 
lien  arising  from  the  act  of  the  law  without  the  consent  of 
the  debtor  whose  estate  is  bound.^ 

It  results  from  these  decisions  that  the  legislature  cannot 
render  a  deed  or  mortgage  which  has  not  been  duly  recorded 
constructive  notice  to  one  who  has  already  bought,  but  that 
such  a  statute  may  bind  a  subsequent  buyer,  although  he  is 
in  fact  ignorant  that  the  premises  have  been  conveyed  or 
encumbered,  and  pays  the  purchase-money  in  the  belief  that 
he  is  acquiring  a  good  title. 

It  was  accordingly  decided  in  Bolton  v.  Johns  that  an  inva- 
lid mechanics'  lien,  filed  by  a  contractor,  may  be  confirmed 
retroactively,  so  long  as  the  premises  are  held  by  the  owner 
who  entered  into  the  agreement  under  which  the  house  was 
built,  but  not  as  regards  a  third  person  who  buys  before  the 
passage  of  the  law.  Gibson,  C.-J.,  said  that  the  statute  was 
clearly  constitutional  as  between  the  builder  and  the  owner, 
who  was  personally  liable  for  the  amount  due.  It  did  not 
vary  the  obligation  of  the  contract,  and  merel}''  supplemented 
the  remedy  which  the  builder  might  have  obtained  by  pro- 
ceeding to  judgment  by  giving  an  immediate  and  specific 
lien.  But  when  the  defendant  gave  value  for  the  property 
while  it  was  still  free  from  any  charge  that  could  be  enforced 
agreeably  to  the  existing  law,  he  acquired  a  right  which 
could  not  be  impaired  retroactively  by  legislation.  It  was 
immaterial  in  this  regard  whether  he  was  or  was  not  aware 
of  the  existence  of  the  defective  lien,  for  even  if  he  had 
received  actual  notice,  it  would  simply  have  informed  him 
of  an  attempt  to  create  a  lien  which  had  failed  of  effect. 
The  case  stood  clear  of  the  principle  of  Menges  v,  Wirtman,^ 
where  it  was  contended  that  the  legislature  might  add  a 
legal  sanction  to  a  moral  obligation,  for  no  such  obligation 
rested  on  the  original  owner,  and  certainly  none  on  the  pur- 
chaser.    It  was  immaterial  that  the  statute  purported  to  be 

1  See  2  Leading  Cases  in  Equity  (4th  Am.  ed.),  90,  96;  Morse  v, 
Letterman,  13  S.  &  R.  167;  Bolton  v.  Johns,  5  Pa.  145. 

2  1  Pa.  218,  223. 


CONFIRMED   AS   AGAINST  PURCHASER.  805 

declaratory  of  the  pre-existing  law,  because  if  the  legislature 
could  not  charge  a  purchaser  with  the  vendor's  debt  by  a 
direct  provision  to  that  effect,  such  a  charge  could  not  be 
imposed  indirectly  by  putting  a  particular  construction  on  a 
statute  which  had  received  a  different  interpretation  from 
the  courts.  It  was,  as  we  have  seen,  held  conversely  in 
Journeay  v.  Gibson,^  that  where  a  conveyance  which  has  not 
been  duly  acknowledged  or  recorded  is  confirmed  by  statute, 
and  thus  rendered  valid  as  between  the  parties,  one  who 
buys  subsequently  will  be  as  much  bound  as  if  the  defect  had 
not  existed. 

It  results  from  the  same  principle  that  the  party  in  whose 
favor  a  deed  is  reformed  by  a  decree  or  statute,  must  have 
given  value,  or  at  least  must  not  be  a  volunteer  claiming 
against  one  whose  equity  is  equal  or  superior  to  his  own.^ 
In  Hout  V.  Hout,^  a  father  conveyed  to  his  sons  in  consid- 
eration of  natural  love  and  affection.  The  deed  failed  for 
want  of  a  due  acknowledgment,  and  the  grantees  filed  a  peti- 
tion, after  their  father's  death,  for  relief  under  a  power  which 
had  been  conferred  retroactively  on  the  courts  by  the  Consti- 
tution of  Ohio.  It  was  held  that  as  the  applicants  had  not 
given  value,  and  the  grantor  had  other  children  who  were 
unprovided  for,  the  petition  should  be  refused. 

In  like  manner  the  legislature  cannot  take  the  estate  from 
the  heir  and  confer  it  on  one  who  claims  under  a  devise 
which  has  not  been  executed  as  the  law  requires  ;  for  even  if 
it  could  be  known  with  legal  certainty  that  the  alleged  will 
expressed  the  settled  purpose  of  the  testator's  mind,  there 
would  still  be  nothing  to  bind  the  conscience  of  the  heir  or 
render  it  incumbent  on  him  to  surrender  what  is  legally  his 
own  to  a  claimant  whose  only  title  is  a  gift  that  has  failed 
of  effect.4 

It  is  nevertheless  well  settled  that  an  heir  sits  in  the  seat 
of  his  ancestor,  and  will  be  bound  by  any  deed  or  contract 

1  56  Pa.  57. 

2  See  Menges  v.  Wirtman,  1  Pa.  218,  223. 
8  20  Ohio  St.  119. 

*  See  ante,  p.  801 ;  Green ough  v.  Greenough,  11  Pa.  489. 


806  PURCHASES  AS   DISTINGUISHED 

that  could  have  been  enforced  specifically  against  him. 
Hence  an  invalid  conveyance  to  a  bona  fide  purchaser  may 
as  well  be  confirmed  by  an  act  of  assembly  after  the  death 
of  the  grantor  as  before,  and  although  she  was  a  married 
woman  acting  under  a  statutory  power,  and  the  estate  has 
descended  to  her  heirs.  Conversely,  a  statute  legitimatizing 
a  child  born  out  of  wedlock  and  declaring  him  capable  of  in- 
heriting from  his  deceased  mother,  may  be  valid  if  she  dies 
subsequently,  but  not  if  the  estate  has  already  fallen  to  the 
lawful  heirs,  because  both  the  parties  to  such  a  controversy 
are  volunteers,  and  neither  can  claim  the  equitable  superiority 
which  alone  justifies  an  interference  with  legal  rights.^ 

In  the  case  last  cited,  the  Chief-Justice  said  it  had  been 
remarked  in  Menges  v.  Wirtman  ^  that  a  party  who  has 
received  a  benefit  from  a  transaction  is  under  a  moral  obliga- 
tion to  convey,  and  that  the  legislature  might  give  it  legal 
force,  and  that  he  still  thought  that  the  distinction  between 
a  purchaser  and  a  volunteer  was  the  only  ground  on  which 
to  found  a  practical  limit  to  judicial  legislation. 

In  Atter's  Appeal,  ^  an  aged  couple,  having  no  lineal  de- 
scendants, determined  to  make  their  wills  in  favor  of  each 
other,  so  that  the  survivor  should  have  all  that  either  of  them 
possessed.  The  wills  were  drawn  alike,  mutatis  mutandis, 
and  laid  ,on  the  table  for  execution,  but  each  testator  in- 
advertently signed  the  paper  intended  for  the  other.  The 
husband  died,  and  the  legislature  sought  to  correct  the  mis- 
take by  authorizing  the  Register's  Court  to  receive  evidence, 
and  if  the  facts  were  proved,  proceed  to  reform  his  will. 
The  widow  filed  a  petition  for  relief  under  the  law,  and  the 
mistake  was  clearly  shown;  but  the  court  held  the  enactment 
unconstitutional,  and  the  decision  was  affirmed  by  the  court 
above. 

It  might  at  first  sight  appear  that  the  appellant  in  this 
case  was  not  a  volunteer,  but  a  party  to  an  agreement  which 
had  failed  through  one  of  those  accidents  which  a  court  of 

1  See  Norman  v.  Heist,  5  W.  &  S.  171 ;  Greenough  v.  Greenongh,  11 
Pa.  489,  495. 

a  1  Pa.  218.  8  67  Pa.  341. 


FROM  VOLUNTARY  GRANTS.  807 

equity  is  competent  to  redress.  Such  might  well  have  been 
the  result  if  there  had  been  a  part  performance  on  which  to 
found  a  decree.  But  inasmuch  as  the  appellant's  will  was 
as  invalid  as  her  husband's,  and  he  could  not  have  taken 
anything  which  it  purported  to  confer,  the  case  was  simply 
that  of  a  parol  agreement  which  had  not  been  carried  into 
effect  on  either  side. 

Retrospective  legislation  may  also  be  upheld  on  the  ground 
that  ratification  is  equivalent  for  most  purposes,  to  a  command. 
It  has  been  held  to  follow  from  this  principle  that  when  an 
act  done  irregularly  or  without  authority  is  one  that  the 
legislature  might  have  authorized,  it  may  be  rendered  valid 
b}^  a  subsequent  statute.^  Contracts  made  and  bonds  issued 
ultra  vires  by  municipal  corporations  have  frequently  been 
confirmed  on  this  ground,^  which  has  also  been  applied  to 
cure  defects  in  the  organization  of  bodies  corporate,  or  in  the 
elections  held  by  them  for  the  choice  of  directors,  presidents, 
cashiers,  or  other  officers.^ 

It  has  also  been  held  that  as  a  State  may  subject  prop- 
erty to  taxation  for  any  cause,  past  or  present,*  it  may 
declare  retrospectively  that  a  statute  imposing  a  collateral 
inheritance  tax  shall  be  so  construed  as  to  embrace  the 
estates  of  persons  who  have  died  during  the  interval,  if  the 
effects  are  still  undistributed  in  the  hands  of  trustees  or 
executors  who  reside  in  the  State  and  are  subject  to  its 
jurisdiction  ;  ^  or,  as  the  principle  was  stated  in  Hewitt's 
Appeal,^  if  the  legislature  might  have  authorized  the  tax, 

1  Green  v.  The  Weissenberg  School  District,  57  Pa.  433,  438;  The  U.  S. 
Mortgage  Co.  v.  Gross,  93  111.  483;  Anderson  v.  Santa  Anna,  116  U.  S. 
356,  364. 

2  Mutual  Benefit  Ins.  Co.  v  Elizabeth,  42  N.  J.  Law,  235,  244;  Jones- 
boro  V.  The  Cairo  R.  R.  Co.,  110  U.  S.  192;  Katzenberg  v.  Aberdeen,  121 
Id.  172. 

3  Jonesboro  v.  The  Cairo  R.  R.  Co.,  110  U.  S.  192;  Baxter  v.  Toledo, 
5  Ohio  St.  225. 

*  Schively  v.  The  Commonwealth,  36  Pa.  29 ;  Green  v.  The  School 
District,  57  Id.  433. 

fi  In  re  Short's  Estate,  16  Pa.  63 ;  17  Howard,  456. 
«  88  Pa.  55. 


808  THE  LEGISLATURE  MAY   RATIFY 

they  may  by  a  retroactive  law  remedy  any  irregularity  or  want 
of  power  in  the  persons  levying  it.  So  a  municipal  tax 
which  exceeds  the  authority  of  the  town  or  borough  by 
which  it  is  imposed  may  be  ratified  by  the  State  so  long  as  it 
remains  uncollected.^  And  where  a  county  or  other  muni- 
cipal corporation  is  authorized  to  take  stock  in  a  railroad  and 
raise  the  money  by  taxation  on  certain  conditions  which  are 
not  fulfilled,  the  defect  may  be  cured  retroactively  by  the 
legislature.^  It  was  accordingly  held  in  Green  v.  The  School 
District  that  where  a  school  board  had  levied  a  tax  which 
was  not  authorized  by  law,  the  legislature  might  cure  the 
defect  retroactively,  although  the  efiPect  was  not  only  to 
defeat  an  action  which  had  been  brought  against  the  board 
but  to  render  the  plaintiff  liable  in  costs.  The  court  said 
that  there  was  no  right  to  costs  that  could  not  be  divested 
by  the  legislature.  All  costs,  both  in  England  and  Pennsyl- 
vania, depended  on  the  statutes,  and  would  fail  with  their 
repeal.  A  judgment  for  costs  was  not  within  this  principle, 
but  had  a  new  and  independent  life,  which  the  legislature 
could  not  destroy  without  an  exercise  of  the  judicial  function 
to  which  it  was  incompetent.^ 

It  has  been  decided  in  numerous  instances  that  a  municipal 
subscription  to  a  railway  or  other  public  enterprise,  which 
fails  for  want  of  power,  or  a  defective  execution  of  the  power 
actually  possessed,  may  be  confirmed  by  a  subsequent  enact- 
ment if  the  circumstances  are  such  that  the  legislature  could 
do  or  command  that  which  it  ratifies.*  In  Cutter  v.  The 
Board  of  Supervisors,  the  statute  under  which  the  subscrip- 
tion took  place  authorized  bonds  with  interest  payable  annu- 

1  Cowgill  V.  Long,  15  111.  202;  Keithsburgh  v.  Frick,  34  Id.  405; 
Anderson  r.  Santa  Anna,  116  U.  S.  356,  360;  Schofield  v.  Watkins,  22  111. 
66;  Green  v.  The  School  District,  57  Pa.  433. 

2  Thompson  v.  Lee  County,  3  Wallace,  327;  The  People  v.  Mitchell, 
35  N.  Y.  551;  Grenada  County  y.  Brogden,  112  U.  S.  261;  Anderson  v. 
Santa  Anna,  116  Id.  365;  St.  Joseph  Township  v.  Rogers,  16  Wallace, 
644. 

*  See  ante^  p.  495. 

*  Grenada  County  v.  Brogden,  112  U.  S.  261;  Ritchie  v.  Franklin,  22 
Wallace,  67;  Cutter  v.  The  Board  of  Supervisors,  56  Miss.  115. 


MUNICIPAL  ACT  OR   CONTRACT. 


809 


ally,  while  the  proposal  submitted  to  the  people  and  adopted 
by  them  was  for  bonds  with  interest  semi-annually ;  and  the 
court  held  that  the  defect  might  be  cured  retroactively.  Such 
a  ratification  was  not  an  attempt  to  impose  a  debt  on  the 
county  without  its  consent.  The  people  had,  on  the  contrary, 
voted  to  incur  the  debt  in  the  shape  of  the  bonds  under  con- 
sideration ;  and  the  legislature  simply  intervened  to  carry  out 
their  intent  by  correcting  the  irregularity  which  prevented  it 
from  taking  effect. 

It  is,  notwithstanding,  established  that  ratification  must 
take  place  at  a  time  and  under  circumstances  when  the  rati- 
fying party  could  have  done  the  act  w^hich  he  confirms  ;  ^ 
and  a  ratification  of  an  unauthorized  stoppage  in  transitu 
comes  too  late  after  the  goods  have  been  delivered  to  the 
consignee.  If  a  constitutional  amendment  precludes  the 
legislature  from  authorizing  a  municipal  subscription,  they 
can  no  longer  ratify  one  made  prior  to  the  amendment,  and 
when  such  an  authority  might  well  have  been  conferred.- 
In  Sykes  v.  The  Mayor  of  Columbus  the  Constitution  of  1869 
prohibited  the  issue  of  municipal  bonds  except  on  certain 
conditions,  and  it  was  held  that  bonds  which  had  been  issued 
previously,  but  did  not  meet  this  requirement,  were  thereby 
rendered  insusceptible  of  ratification.  They  might  have  been 
authorized  or  confirmed  under  the  former  Constitution,  but 
the  power  needful  for  either  end  was  gone.^ 

It  is  not  less  well  settled  that  to  render  a  ratification  valid 
the  act  must  have  been  done  or  contract  made  for  or  on  behalf 
of  the  person  or  body  by  whom  it  is  confirmed,  —  which  can- 
not be  said  when  the  legislature  attempts  to  give  life  to 
agreements  between  individuals  which  were  not  valid  under 
the  pre-existing  law.  The  contracts  of  municipal  corporations 
and  other  public  agents  stand  on  a  different  footing,  because 
the  government  might  have  done  directly  what  was  effected 
through  an  intermediate  hand,  and  it  may  consequently  be 

^  Bird  ??.  Brown,  4  Ex.  786,  798;  Grenada  County  v.  Brogden,  112 
U.  S.  261,  271;  Hare  on  Contracts,  280. 

'^  Sykes  v.  The  Mayor  of  Columbus,  55  Miss.  115. 

«  See  Grenada  County  r.  Brogden,  112  U.  S.  261,  271. 


810  INABILITY  TO  CONVEY. 

ratified  b}^  the  State.^  Two  cases  in  the  same  volume  of 
reports,  which  might  seem  opposite,  may  be  reconciled  with 
the  aid  of  this  distinction.^  In  The  Oswego  R.  R.  Co.  v. 
Van  Horn,  a  New  York  statute  required  that  ten  per  cent  of 
the  amount  of  subscriptions  to  raih-oad  stock  should  be  paid 
in  advance.  The  defendant  did  not  pay  the  ten  per  cent,  and 
the  court  held  that  the  defect  could  not  be  remedied  retro- 
actively, because  he  was  acting  on  his  own  behalf  and  could 
not  be  compelled  to  render  what  he  did  not  owe. 

In  Duanesburg  v.  Jenkins^  the  question  arose  under  a 
statute  authorizing  municipal  subscriptions  to  railroads  on 
conditions  which,  in  the  instance  under  consideration,  had 
not  been  fulfilled  ;  but  the  bonds  were,  notwithstanding, 
executed,  and  came  to  the  plaintiff's  hands.  The  act  was  a 
public  one  on  the  part  of  an  agency  constituted  by  the  State  ; 
and  a  subsequent  statute  providing  that  where  bonds  had 
been  issued  by  the  commissioner  of  a  town  to  aid  in  the  con- 
struction of  a  railroad,  and  the  railroad  built,  the  bonds  should 
be  valid  without  reference  to  the  suJB&ciency  of  the  proofs, 
was  held  good,  because  the  legislature  might  have  author- 
ized the  subscription  unconditionally  in  the  first  instance. 

While  the  legislature  may  retroactively  cure  a  disability 
imposed  by  the  law,  it  cannot  so  deal  with  a  restriction 
imposed  by  a  grantor  or  testator.  If  it  could  not  have  en- 
abled the  vendor  to  convey,  it  cannot  confirm  the  title  of 
the  purchaser.  In  Jones's  Appeal,*  a  husband  and  wife  who 
had  sold  land  and  executed  a  deed,  sought  to  set  it  aside 
on  the  ground  that  as  the  premises  were  for  her  separate 
use,  she  had  no  power  to  convey ;  and  it  was  held  that  the 
legislature  might  well  authorize  the  court  of  Common  Pleas 
to  confirm  the  sale  on  proof  of  the  above  facts  and  that  she 
had  received  the  purchase-money. 

1  See  Ritchie  v.  Franklin,  22  Wallace,  167;  Grenada  County  v.  Brog- 
den,  112  U.  S.  261,  271;  Anderson  y.  Santa  Anna,  116  Id.  364;  Sykes  v. 
The  Mayor  of  Columbus,  55  Miss.  115. 

2  See  Duanesburgh  v.  Jenkins,  57  N.  Y.  77;  The  Oswego  R.  R.  Co.  v. 
Van  Horn,  Id.  473. 

8  57  N.  Y.  177.  *  57  Pa.  369. 


EESTRAINT   ON  ALIENATION. 


811 


A  like  question  arose  not  long  afterwards  in  Shonk  v.  Brown,^ 
but  with  an  opposite  result.  Land  was  devised  to  the  sepa- 
rate use  of  a  married  woman,  with  a  condition  against  aliena- 
tion. She  died  after  having  conveyed  it  to  a  purchaser,  and 
an  act  passed  to  confirm  his  title  was  held  to  be  inoperative 
against  her  heirs.  Agreeably  to  the  view  taken  by  the  court, 
the  legislature  may  relieve  a  married  woman  from  the  re- 
straint implied  in  a  grant  to  her  separate  use,  but  has  no  such 
power  when  the  disability  is  imposed  in  terms  by  the  grant 
or  devise  under  which  she  claims.  Such  a  distinction  is  ques- 
tionable, because  the  validity  of  a  condition  against  aliena- 
tion depends  on  the  law,  and  may  consequently,  where  there 
is  no  gift  over,  be  abrogated  by  a  statute  empowering  the 
grantee  to  convey,  or  ratifying  a  deed  which  is  already  ex- 
ecuted. Moreover,  the  grantor  must  be  presumed  to  know 
and  intend  the  legal  consequences  of  what  he  does ;  and  if 
these  are  that  the  property  shall  be  inalienable,  a  statute 
authorizing  a  conveyance  frustrates  his  purpose  as  well  as 
the  pre-existing  rule  of  law. 

The  doctrine  that  a  ratification  is  equivalent  to  a  command 
may  be  altogether  just  when  the  party  ratifying  is  the  party 
to  be  bound  and  cannot  well  object  to  a  burden  which  he 
has  voluntarily  assumed ;  but  the  case  is  widely  different 
where  the  sovereign  endeavors  to  render  a  past  act  or 
contract  binding  on  an  individual.  The  legislature  may 
authorize  the  sheriff  to  proceed  to  a  condemnation  and  sale 
of  land  beyond  his  bailiwick ;  but  such  a  transfer  cannot  justly 
be  confirmed  by  a  subsequent  statute,  because  purchasers 
may  have  refrained  from  bidding,  under  the  belief  that  they 
would  not  acquire  a  valid  title,  or  the  defendant  in  the  execu- 
tion may  have  thought  himself  secure  and  omitted  the  steps 
necessary  to  protect  his  interest.^  Nor  can  it  safely  be  as- 
sumed that  the  confirmation  of  a  contract  of  a  body  cor- 
porate, which  was  ultra  vires  under  the  pre-existing  law,  is 
identical  in  point  of  right  and  justice  with  a  statute  authoriz- 
ing such  a  contract  to  be  made.  Had  the  corporation  been 
known  to  possess  such  a  power,  more  care  might  have  been 


1  61  Pa.  320. 

VOL.  II. —  11 


2  See  ante,  p.  727. 


812  INVALID   sheriff's   SALE. 

taken  in  the  election  of  its  officers,  or  they  might  have 
been  chosen  under  a  pledge  not  to  exercise  the  power.  Ac- 
cordingly, in  Hasbrouck  v.  Milwaukee,^  where  the  city  of 
Milwaukee,  which  had  been  authorized  by  act  of  assembly  to 
contract  for  the  construction  of  a  harbor  at  an  expense  not 
exceeding  $100,000,  entered  into  a  contract  stipulating  for 
the  payment  of  a  larger  sum,  the  court  held  that  the  contract 
could  not  be  ratified  by  the  legislature.  A  void  contract 
was  said  to  be  in  effect  none,  and  the  attempt  to  render  it 
binding,  the  creation  of  a  right  rather  than  a  grant  of  a 
remedy.  This  decision  would  seem  to  be  better  founded 
than  the  cases  of  Guilford  v.  Supervisors  of  Chenango,^  and 
Brewster  v,  Syracuse,^  where  a  similar  question  was  decided 
the  other  way.  It  was  held  in  like  manner  by  the  Supreme 
Court  of  Pennsjdvania,  in  Dale  v,  Medcalf,*  that  a  sale  made 
by  the  sheriff  subsequently  to  the  return  day  could  not  be 
rendered  valid  retrospectively  as  against  a  purchaser  at  a 
subsequent  sale  under  an  incumbrance  which  would  have 
been  discharged  if  the  former  sale  had  passed  the  title.  For 
the  same  reason,  a  statutory  ratification  of  a  sheriffs  sale  of 
land  situated  in  another  county  will  be  unconstitutional  as 
regards  the  defendant  in  the  execution,  and  those  claiming 
under  him  by  descent  or  purchase,  although  the  proceeds 
have  gone  to  pay  his  debts  and  he  may  be  regarded  as  under 
a  moral  obligation  to  convey.^ 

The  inclination  of  the  judicial  mind  is  against  retroactive 
legislation,  as  open  to  abuse  and  tending  to  disturb  titles 
which  were  valid  under  the  pre-existing  rule  ;  and  a  statute 
will  not  be  allowed  to  operate  on  antecedent  rights  or  reme- 
dies if  it  admits  of  a  different  construction,  nor  unless  the 
intention  of  the  legislature  is  clear  and  unequivocal.^ 

1  13  Wis.  37.  8  19  N.  Y.  116. 

2  18  Barbour,  165;  13  N.  Y.  143.  *  9  Pa.  108. 

5  Menges  v.  Dentler,  33  Pa.  495.     See  ante,  p.  727. 

6  Robb  V.  Harland,  7  Pa.  292;  Bedford  v.  Shilling,  4  S.  &  R.  408; 
Dewart  v.  Purdy,  29  Pa.  113;  Murray  r.  Gibson,  15  Howard,  421,  423; 
McEwen  v.  Bulkley,  24  Id.  242,  244;  Twenty  Per  Cent  Cases,  20  Wallace, 
179,  187;  Cook  v.  Googins,  136  Mass.  410. 

"  Courts  of  justice  agree  that  no  statute,  however  positive  in  its  terms, 


RETEOACTIVE  LEGISLATION.  813 

is  to  be  construed  as  designed  to  interfere  with  existing  contracts  or  rights 
of  actions,  or  with  vested  rights,  unless  the  intention  that  it  shall  so  op- 
erate is  expressly  declared  or  is  to  be  necessarily  implied;  and  pursuant 
to  that  rule  courts  will  apply  new  statutes  only  to  future  cases,  unless 
there  is  something  in  the  nature  of  the  case  or  in  the  language  of  the  new 
provision  which  shows  that  they  were  intended  to  have  a  retroactive 
operation.  Even  though  the  words  of  a  statute  are  broad  enough  in 
their  literal  extent  to  comprehend  existing  cases,  they  must  yet  be  con- 
strued as  applicable  only  to  cases  that  may  hereafter  arise,  unless  the 
language  employed  expresses  a  contrary  intention  in  unequivocal  terms. 
Twenty  per  Cent  Cases,  20  Wallace,  810;  Potter's  Dwarris,  161;  Wood 
V.  Oakley,  11  Paige,  403;  Butler  v.  Palmer,  1  Hill,  325;  Jarvis,  3  Ed- 
wards, 446;  McEwen  v.  Bulkley,  21  Howard,  242;  Hai-vey  v.  Tyler,  2 
Wallace,  329;  Blanchard  v.  Sprague,  3  Sumner,  535;  United  States  v. 
Heth,  3  Cranch,  399." 


LECTURE    XXXVI. 

Land  which  cannot  be  divided  without  Injury  may  be  sold  for  the  Pur- 
pose of  Partition.  —  The  Conversion  of  Property  into  Money  is  not 
necessarily  Deprivation.  —  Unproductive  Property  may  be  sold,  and 
the  Proceeds  invested  for  the  Support  of  an  Owner  who  is  insane  or 
under  Age,  although  the  other  Owners  do  not  concur.  —  Conversion 
at  the  Instance  of  a  Life-tenant  when  the  Remainder-men  are  not  sui 
juris  or  cannot  be  ascertained.  —  Such  a  Conversion  unconstitutional 
where  all  the  Parties  are  sui  Juris.  —  Land  cannot  be  converted  into 
Money  without  the  Consent  of  a  Remainder-man  who  is  under  no 
Disability.  —  The  Legislature  cannot  authorize  the  Conversion  of 
Land  where  no  Legal  Necessity  exists.  —  Legislative  Action  for  such 
Purposes  forbidden  in  some  of  the  States.  —  The  Power  should  be 
exercised  through  the  Courts. 

There  is  an  exceptional  class  of  cases  which  will  be  found 
on  examination  to  be  consistent  with  Magna  Charta,  although 
at  first  sight  they  may  appear  to  be  at  variance  with  it  and 
the  general  principles  of  jurisprudence.  It  is  well  settled  in 
Pennsylvania  and  generally  throughout  the  United  States, 
contrary  to  the  practice  at  common  law  and  of  the  English 
Chancery,  that  where  land  held  by  joint  tenants  or  tenants 
in  common  cannot  be  divided  without  spoiling  the  whole, 
and  no  one  of  them  will  take  it  at  a  valuation,  the  legislature 
may  authorize  or  the  court  direct  a  sale  at  the  instance  of  one 
or  more  of  the  persons  interested,  although  the  rest  dissent, 
because  the  right  to  a  partition  is  an  incident  of  property  to 
which  every  joint  owner  is  at  once  subject  and  entitled.^ 
Such  a  proceeding  must  nevertheless  be  duly  instituted  with 
notice  to  all  concerned,  and  an  act  of  assembly  authorizing  a 
sale  of  the  real  estate  of  a  decedent,  on  the  application  of  his 
executors  without  summoning  his  heirs  or  obtaining  their 

^  2  Leading  Cases  in  Equity  (4th  Am.  ed.),  915;  Kneass's  Appeal, 
31  Pa.  87,  90  ;  Richardson  v.  Morrison,  23  Conn.  94. 


CONVERSION  NOT   NECESSARILY  DEPRIVATION.         815 

assent,  is  simply  void.^  The  principle  on  which  these  deci- 
sions proceed  is,  that  one  joint  owner  is  not  entitled  to  stand 
in  the  way  of  the  others,  or  prevent  a  partition  that  will  be 
beneficial  to  them  without  being  injurious  to  himself.  All 
have  an  equal  right ;  and  if  they  cannot  agree,  the  court 
may  put  an  end  to  the  controversy  by  giving  each  his  share, 
and  decree  a  sale  if  there  is  no  other  way.^  Such  a  taking 
is  not  deprivation  in  the  constitutional  sense  of  the  term, 
because  the  land  is  sold  at  the  instance  of  one  who  is  jointly 
interested  and  the  proceeds  are  divided  among  all.^  It  is 
essential  that  the  parties  in  interest  should  have  notice  or 
appear,*  although  publication  may  be  substituted  for  actual 
notice  as  regards  those  who  are  unknown  or  beyond  the 
reach  of  process.^ 

The  power  is  ordinarily  administered  judicially;  but  where 
there  was  a  clear  right  to  a  partition  among  tenants  in  com- 
mon, but  the  proceedings  might  be  indefinitely  delayed  by  a 
contest  with  regard  to  the  last  will  of  one  of  them,  the  court 
held  that  the  legislature  might  cut  the  knot  by  ordering  a 
sale  and  distribution  of  the  proceeds  ;  ^  and  the  decision  seems 
to  have  been  approved  in  Hegarty's  Appeal^ 

It  has  been  held  to  follow  from  the  same  principle  that 
where  land  belonging  to  several  persons  cannot  be  drained  or 
secured  from  inundation  without  a  systematic  plan,  the  legis- 
lature may,  at  the  instance  of  one  or  more  of  the  owners, 
direct  the  construction  of  the  necessary  dikes  or  ditches,  and 
that  the  cost  shall  be  assessed  on  all,  although  some  of  them 
withhold  their  assent.^  This,  however,  is  a  stretch  of  power 
that  can  be  defended  only  on  the  ground  taken  in  some  in- 
stances of  a  custom  which  is  inveterate  and  has  the  force  of 

1  Kneass's  Appeal,  31  Pa.  87. 

2  Head  v.  The  Amoskeag  Co.,  113  U.  S.  9,  22. 

3  See  Kneass's  Appeal,  31  Pa.  87. 

^  Mead  v.  Mitchell,  17  N.  Y.  210;  Richard  v.  Rote,  68  Pa.  248. 
6  See  Mead  v.  Mitchell,  17  N.  Y.  210. 
«  Biddle  v.  Starr,  9  Pa.  461. 
'  75  Pa.  504,  518. 

8  Wiirtz  V.  Hoagland,  114  U.  S.  606.  See  Head  v.  The  Amoskeag  Co., 
113  Id.  9,  22. 


816  CONVERSION  OF  LAND  SUBJECT 

law.^  The  legislature  may  also  constitutionally  enact  that 
land  or  property  of  any  kind  belonging  to  persons  who  by 
reason  of  infanc3%  lunacy,  or  other  cause  are  unable  to  con- 
vey, and  which  is  unproductive  or  does  not  yield  an  adequate 
return,  may  be  sold  at  the  instance  of  the  guardian,  commit- 
tee, or  trustee,  and  the  proceeds  used  for  pressing  needs. 
Such  an  exercise  of  authority  is  not  despotic,  but  paternal,  to 
provide  for  the  education  or  maintenance  of  persons  whose 
condition  is  such  that  they  cannot  care  for  themselves,  and 
may  be  regarded  as  the  wards  of  the  State.^ 

It  has  been  held  on  like  grounds  that  when  property  has 
been  settled  by  will  or  deed  for  life,  with  limitations  over  to 
persons  not  in  being  or  who  are  incompetent  to  exercise  a 
legal  judgment,  the  legislature  may  authorize  a  sale  and  the 
re-investment  of  the  proceeds  for  the  same  uses,  if  such  a 
course  will  be  for  the  benefit  of  all  concerned,  or  beneficial 
to  some  of  them,  and  not  injurious  to  the  rest.^  This  power 
cannot  ordinarily  be  exercised  without  the  consent  of  all  who 
are  sui  juris  ;  but  where  one  or  more  of  the  parties  is  an  in- 
fant or  lunatic,  the  land  may  be  sold  to  provide  for  his  wants 
if  there  are  no  other  means,  against  the  will  of  the  other 
life-tenants  or  remainder-men.*  So  unproductive  real  estate 
may  be  sold  with  leave  of  the  court  or  under  an  act  of 
assembly  by  the  committee  or  guardian  of  a  tenant  for  life 
who  is  insane  or  under  age,  notwithstanding  the  opposition 
of  the  remainder-men,  on  the  principle  which  prevails  in 
partition,  that  land  belonging  to  several  owners  who  cannot 
agree  may  be   converted  into   money  if  there  is   no   other 

1  See  ante,  pp.  290,  314;  also  Coster  v.  The  Tide  Water  Co.,  3  C.  E. 
Green,  514,  518. 

2  Cochran  v.  Van  Surlay,  20  Wend.  365;  Liggett  v.  Hunter,  19  N.  Y. 
445;  Brevoort  v.  Grace,  53  Id.  245;  Davison  v.  Johonnot,  7  Met.  388;  Rice 
V.  Parkman,  16  Mass.  326. 

8  Ester  V.  Hutchman,  14  S.  &  R.  435;  Norris  v.  Clymer,  2  Pa.  285; 
Rice  V.  Parkman,  16  Mass.  326;  Blagge  v.  Miles,  1  Story,  426;  Sohier  v. 
The  Massachusetts  General  Hospital,  3  Cushing,  483 ;  Brevoort  v.  Grace, 
53  N.  Y.  245,  259  ;  Linsley  v.  Hubbard,  44  Conn.  109. 

*  Sohier  v.  The  Massachusetts  General  Hospital,  3  Cushing,  483, 
493. 


TO  CONTINGENT  REMAINDER.  817 

way  of  giving  each  his  share. ^  Such  a  sale  simply  turns 
the  property  into  another  form,  where  it  may  bear  fruit  for 
the  first  takers,  who  would  otherwise  have  a  barren  inheri- 
tance and  be  postponed,  as  regards  all  real  and  substantial 
benefit,  to  persons  yet  unborn.  It  cannot,  however,  be  appro- 
priately exercised  unless  the  proceeds  can  be  placed  in  trust 
and  held  securely  for  the  executory  devisees  or  remainder-men. 
The  purchase-money  must  consequently  be  invested  for  the 
use  of  the  parties  or  paid  to  a  trustee  who  acts  as  their  repre- 
sentative, and  no  part  of  it  can  be  laid  out  in  improvements 
on  other  land  devised  for  the  same  uses,  advantageous  as  such 
an  expenditure  may  appear  to  be  to  the  cestuis  que  trustent? 

It  has  also  been  said  that  when  an  estate  is  vested  in 
trustees  for  purposes  which  require  that  they  shall  represent 
and  act  for  the  cestuis  que  trustent,  and  the  latter  are  so  un- 
certain or  numerous  that  they  cannot  join  in  the  petition  or 
be  summoned  to  appear,  or  have  limited  interests,  or  are 
under  legal  disabilities,  the  legislature  may  authorize  the 
trustees  to  sell  with  their  assent,  "  because  no  legal  right  is 
violated,  and  the  conversion  is  made  by  the  legal  owner  or 
with  his  concurrence."^  It  is  nevertheless  difficult  to  be- 
lieve that  where  consent  would  be  requisite  if  the  property 
were  not  in  trust,  it  ma}^  be  dispensed  with  simply  on  that 
ground,  because  one  who  is  beneficially  interested  in  land  or 
goods  is  as  much  an  owner  and  entitled  to  be  heard  as  if  he 
held  the  legal  title  ;  and  the  import  of  the  decisions  seems  to 
be,  not  that  the  legislature  may  authorize  a  trustee  to  sell 
without  the  consent  of  his  cestuis  que  trustent  when  the  cir- 
cumstances do  not  imperatively  require  the  change,  but  that 
when  such  a  necessity  exists,  the  power  may  be  conferred 
on  one  who  represents  all,  and  will  presumably  exercise  it 
for  the  general  good.* 

1  See  Brevoort  v.  Grace,  53  N.  Y.  245,  253;  Mead  v.  MitcheU,  17 
Id.  210  ;  Linsley  v.  Hubbard,  44  Conn.  109. 

2  Martin's  Appeal,  23  Pa.  433 ;  Soliier  v.  The  Massachusetts  General 
Hospital,  3  Gushing,  483',  493. 

«  Kery.  Kitchen,  17  Pa.  438;  Kneass's  Appeal,  31  Id.  87,  90;  Hegarty's 
Appeal,  75  Id.  503,  517. 

*  Palairet's  Appeal,  67  Pa.  473;  Ervine's  Appeal,  16  Id.  264. 


818  ALL  MUST  CONCUR 

The  cases  above  considered  are  exceptions  to  the  general 
and  obvious  rule  that  every  one  may  insist  that  his  property 
shall  remain  intact  until  he  desires  a  change,  and  shall  not  be 
taken  from  him  and  turned  into  money  on  the  ground  that  he 
or  other  parties  interested  will  be  benefited  b}^  the  conver- 
sion.^ No  legislative  body  in  this  country  has  the  omnipo- 
tence of  Parliament,  or  can  make  grants  or  contracts  for 
individuals  who  are  able  to  think  and  act  for  themselves.  If 
absolute  power  resides  anywhere,  it  is  in  the  people,  and 
must  be  exercised  by  them  in  subordination  to  the  lex  legum 
or  organic  law  by  which  they  are  severally  and  collectively 
bound.  Property  cannot  be  taken  for  private  ends,  for  if 
it  could,  there  would  be  no  right  to  the  compensation  which 
must  come  from  the  funds  contributed  by  all,  and  is  only 
due  where  some  public  interest  will  be  served.^  It  was 
accordingly  said  in  Ervine's  Appeal^  that  in  no  instance 
*'  where  the  legislature  ordered  the  sale  of  one  man's  land 
when  he  was  sui  juris  and  under  no  disability,  for  the  benefit 
of  another  person  also  sui  juris,  was  the  decree  sustained  ; " 
and  this  dictum  was  cited  and  approved  in  Kneass's  Appeal.* 
"The  power  to  authorize  the  conversion  of  land,"  said  Shars- 
wood,  J.,  in  Palairet's  Appeal,  ''  has  never  been  recognized 
as  constitutional  by  this  court  except  in  the  case  of  the 
property  of  persons  under  disabilities,  or  where  there  were 
contingent  interests  whose  owners  had  not  come  into  ex- 
istence, and  that,  too,  with  the  consent  of  those  standing 
in  the  fiduciary  relation  of  trustee,  guardian,  or  committee. 
The  cases  in  which  such  conversion  ma}^  be  authorized  seem 
well  enumerated  in  Mr.  Price's  valuable  act  of  April  18, 
1853.^  But  it  has  been  expressly  repudiated  and  denied  in 
the  case  of  owners  sui  juris  not  consenting  nor  presumed 
from  acquiescence  to  have  consented.  ...  In  Kneass's 
Appeal,^  it  was  expressly  held  that  the  legislature  had  no 

1  Palairet's  Appeal,  67  Pa.  493;  Hegarty's  Appeal,  75  Id.  503. 

2  Powers  V.  Bergen,  6  N.  Y.  358;  Brevoort  v.  Grace,  53  Id.  245; 
Palairet's  Appeal,  67  Pa.  493  ;  Comstock  v.  Gay,  51  Conn.  45,  62. 

8  16  Pa.  264. 

*  31  Pa.  87.  e  Pamph.  L.  503-  «  31  Pa.  87. 


WHERE  ALL  ARE   SUI  JURIS.  819 

power  to  authorize  the  sale  of  the  property  of  parties  sui 
Juris  and  seized  of  a  vested  estate  in  the  premises  against 
their  consent.  '  Where  it  is  judicially  established,'  said 
Chief- Justice  Lewis,  '  that  the  estates  of  tenants  in  common 
cannot  be  divided  without  prejudice  or  spoiling  the  whole, 
and  where  no  one  of  the  parties  will  take  the  property 
at  the  valuation,  the  power  to  sell  is  exercised  by  the 
courts,  and  this  power  is  derived  from  the  legislature. 
But  it  is  justified  by  the  necessities  of  justice;  the  parties 
in  interest  cannot  otherwise  enjoy  their  rights ;  and  a  sale 
in  such  a  case  is  as  valid  as  a  judicial  sale  for  payment 
of  debts.' "^  Accordingly,  where  land  was  bequeathed  to 
executors  in  trust  to  support  the  testator's  son  out  of 
the  rents,  issues,  and  profits,  with  a  proviso  that  none  of 
it  should  be  sold  until  his  death,  and  the  whole  then  dis- 
tributed among  his  children,  an  act  requiring  the  orphans' 
court  to  appoint  a  trustee  to  sell  and  invest  the  proceeds 
for  the  uses  of  the  will  was  held  unconstitutional  by  the 
court  below,  which  refused  to  exercise  the  power  without 
the  consent  of  the  remainder-men,  and  the  judgment  was 
sustained  by  the  court  of  last  resort.^  The  same  point  may 
be  found  in  Shoenberger  v.  The  School  Directors  ;  ^  and  it 
follows  that  land  cannot  be  converted  into  money  at  the 
instance  of  a  tenant  for  life  against  the  will  of  an  executory 
devisee  or  a  remainder-man  who  is  in  being  and  not  dis- 
abled from  judging  for  himself,  nor  on  the  application  of 
a  remainder-man  contrary  to  the  wish  of  the  first  taker, 
unless  the  disability  of  one  or  more  of  the  parties,  or,  agree- 
ably to  the  Pennsylvania  decisions,  the  unproductive  nature 
of  the  property,  creates  an  exception  to  the  rule.* 

Agreeably  to  the  view  taken  in  Brevoort  v.  Grace,^  while 
the   legislature  may  specifically  authorize  the  sale  of  land 

1  See  also  Powers  v.  Bergen,  6  N.  Y.  358. 

2  Ervine's  Appeal,  16  Pa.  256.  »  32  Pa.  34. 

*  Powers  V.  Bergen,'  6  N.  Y.  358;  Brevoort  v.  Grace,  53  Id.  245; 
Shoenberger  v.  The  School  District,  32  Pa.  34 ;  Ervine's  Appeal,  16  Id. 
264;  Kneass's  Appeal,  31  Id.  87;  Hegarty's  Appeal,  75  Id.  503,  507. 

6  53  N.  Y.  245. 


820  LEGISLATURE   CANNOT  DIRECT   SALE 

belonging  to  infants  or  other  persons  not  capable  of  act- 
ing for  themselves,  and  also  the  contingent  rights  of  per- 
sons not  in  esse^  it  has  no  such  power  relatively  to  persons 
of  full  age  and  under  no  disabilitj^  and  cannot  direct  the  con- 
version of  their  interest  into  money,  whether  it  be  "  a  vested 
estate  in  expectancy,  or  a  contingent  estate  in  expectancy." 
A  tenant  in  fee  no  more  represents  the  person  to  whom  the 
estate  is  devised  over  in  the  event  of  his  dying  childless, 
than  he  represents  a  vested  remainder-man.  An  enactment 
that  the  property  shall  be  sold  at  his  instance  without  sum- 
moning the  executory  devisee  and  obtaining  his  consent,  oper- 
ates as  a  deprivation  without  due  process  of  law  ;  and  as  there 
is  under  these  circumstances  an  entire  want  of  power,  it  is 
immaterial  that  the  sale  will  be  beneficial  to  all  the  parties 
concerned.  "It  is  insisted,"  said  Grover,  J.,  "that  the  act  in 
question  should  be  sustained  for  the  reason  that  some  of  the 
heirs  are  infants,  and  that  the  legislature  has  the  power  to 
authorize  the  sale  of  the  interests  of  these  infants.  But  this 
does  not  confer  the  power  to  authorize  a  sale  of  the  interests 
of  the  adults  without  their  consent.  It  is  further  insisted  that 
although  the  legislature  may  not  have  the  power  to  authorize 
the  sale  of  an  estate  in  possession  or  a  vested  estate  in  ex- 
pectancy of  an  adult  without  his  consent,  yet  it  can  authorize 
the  sale  of  a  contingent  estate  in  expectancy.  I  can  see  no 
reason  for  the  distinction.  An  owner  sui  jm'is  is  equally 
competent  to  determine  and  manage  for  himself  in  the  one 
case  as  in  the  other.  The  foundation  of  the  power  of  the  leg- 
islature to  act  in  behalf  of  any  owner  is  the  want  of  capacity 
to  act  for  himself;  and  this  reason  no  more  extends  to  the 
case  of  a  contingent  than  to  a  vested  expectant  estate." 

The  difference  between  this  opinion  and  that  which  pre- 
vails in  Massachusetts  and  Pennsylvania,  is  that,  agreeably 
to  the  view  taken  in  the  latter  States,  land  may  be  sold  at 
the  instance  or  on  behalf  of  persons  who  are  not  sui  juris, 
although  other  persons  who  are  sui  Juris  and  are  also  in- 
terested do  not  concur  in  the  application.  A  joint  owner 
or  remainder-man,  whether  his  interest  be  vested  or  con- 
tingent, who  is  in  being  and  competent  to  decide  for  him- 


WHERE  NO  LEGAL  NECESSITY  EXISTS.  821 

self,  will  not  be  compelled  in  New  York  .to  part  with  his 
property  by  a  court  or  legislatively,  because  another  owner 
or  the  tenant  for  life  is  under  age  or  insane  and  stands  in 
need  of  such  order  or  decree.  This  conclusion  would  seem 
to  be  entirely  just,  unless  the  respective  estates  or  interests 
are  so  inextricably  involved  that  they  cannot  be  disen- 
tangled in  the  ordinary  course  of  proceedings  in  partition, 
when  a  sale  may  be  decreed  by  a  court  of  equity  as  the 
only  means  of  giving  each  his  share. 

If  land  is  devised  one  half  to  A  absolutely,  and  the  other 
half  to  B  for  life,  remainder  in  fee  to  his  minor  children  with 
an  executory  devise  over  to  A,  and  the  latter  opposes  a  sale 
which  B  desires  for  the  education  and  maintenance  of  the 
infants,  the  court  may  put  an  end  to  the  controversy  by 
directing  the  master  to  sell  and  distribute  the  proceeds,  or, 
if  the  property  can  be  divided  without  prejudice,  set  the 
respective  shares  off  in  severalty ;  B's  interest  will  then  be 
distinct  from  A's,  and  the  title  of  the  executory  devisee  will 
not,  agreeably  to  the  view  taken  in  Pennsylvania,  be  allowed 
to  stand  in  the  way  of  the  conversion  which  is  necessary  for 
the  children,  although  he  is  sui  Juris  and  does  not  consent, 
the  reason  being  that  the  right  to  distribution  is  paramount, 
and  may  be  carried  into  effect  through  a  sale  if  there  is  no 
other  way.^ 

It  is  at  the  same  time  generally  conceded  that  the  legisla- 
ture cannot,  by  assuming  the  necessity  which  can  alone 
justify  the  exercise  of  such  a  power,  take  the  estate  of  one 
man  and  transfer  it  to  another,  even  through  the  instrumen- 
tality of  a  sale  to  the  highest  bidder,  on  the  plea  that  the 
effect  is  simply  to  convert  the  property  into  mone}^,  which 
will  be  invested  and  bear  interest  for  all  concerned  .^  The 
statute  should  consequently  recite  the  facts  which  warrant 
the  conversion ;  and  whether  it  does  so  or  not,  the  case  may 
be  reviewed  by  the  courts,  and  the  sale  set  aside  if  there  is 

1  See  Smith  v.  Townsend,  32  Pa.  434,  442;  Greenawalt's  Appeal, 
37  Id.  95,  100. 

2  Powers  r.  Bergen,  6  N.  Y.  358 ;  Lane  v.  Dorman,  3  Scammon,  242. 
See  opinions  of  the  judges,  4  N.  H.  572. 


822  THE  POWER  TO  CONVERT,  JUDICIAL. 

no  sufficient  ground.^  The  existence  of  liens  for  taxes  or 
other  incumbrances  will  not,  therefore,  warrant  the  sale  of  an 
entire  estate  consisting  of  several  parcels,  if  it  appears  that 
one  of  them  might  and  did  yield  enough  to  discharge  the 
debts.2  The  power  to  direct  a  sale  for  the  payment  of  debts 
or  on  the  ground  that  such  a  conversion  is  necessary  or  bene- 
ficial to  persons  who  from  infancy  or  other  causes  are  unable 
to  act  for  themselves,  depends  on  facts  which  should  be  judi- 
cially ascertained  in  due  course  of  law,  and  not  left  to  a 
body  which  may  lay  down  rules  but  cannot  properly  deter- 
mine whether  the  circumstances  require  their  application,^ 
but  is  viewed  in  Massachusetts  as  ministerial,  because  there 
is  no  controversy  between  party  and  party,  nor  is  any  question 
of  ownership  involved.* 

The  problem  has  been  simplified  in  some  of  the  States  by 
a  constitutional  prohibition  of  private  or  special  legislation 
and  laws  conferring  the  requisite  powers  on  the  courts ;  ^  but 
the  question  remains.  Can  a  contingent  interest  be  so  dis- 
posed of  without  the  owner's  consent,  although  all  the  par- 
ties are  sui  juris  and  there  are  no  debts?  and  was  answered 
affirmatively  in  Pennsylvania.^ 

1  Powers  V.  Bergen,  6  N.  Y.  358. 

2  Brevoort  v.  Grace,  53  N.  Y.  245. 

8  See  post,  p.  846  ;  also  opinions  of  the  judges,  4  N.  H.  572  ;  and 
Powers  V.  Bergen,  6  N.  Y.  538;  Brevoort  v.  Grace,  50  N.  Y.  245; 
Kneass's  Appeal,  31  Pa.  87;  Ervine's  Appeal,  16  Id.  265;  Palairet's 
Appeal,  67  Id.  493;  Hegarty's  Appeal,  75  Id.  503. 

*  Rice  V.  Parkman,  16  Mass.  326;  Blagge  v.  Miles,  1  Story,  426,  444; 
Davison  v.  Johannot,  7  Met.  388;  Sohier  v.  The  Massachusetts  General 
Hospital,  3  Gushing,  483. 

6  Burton's  Appeal,  57  Pa.  213. 

®  Greenawalt's  Appeal,  37  Pa.  95. 


LECTUKE   XXXVII. 

What  constitutes  Property  in  the  Sense  of  the.  Fifth  and  Fourteenth 
Amendments.  —  Taking  away  the  Remedy  is  a  Deprivation  of  the 
Right.  —  Choses  in  Action  are  as  much  Property  as  Things  actually 
possessed.  —  That  which  Another  may  Dispose  of  absolutely,  or  con- 
vert to  his  own  Use,  is  not  mine.  —  The  Survivorship  of  a  Joint  Ten- 
ant, and  a  Remainder  after  an  Estate  Tail  are  within  this  Principle.  — 
Dower  and  Tenancy  by  the  Curtesy.  —  A  Man's  Papers  are  Property. 
—  Unreasonable  Searches  and  Seizures.  —  A  Man  cannot  be  compelled 
in  a  Criminal  or  Penal  Proceeding  to  become  a  Witness  against  Him- 
self, or  to  produce  his  Books  and  Papers.  —  Repealing  the  Statute  of 
Limitations  will  not  revive  a  Right  which  it  has  barred.  —  Application 
of  this  Principle  in  Criminal  Proceedings  and  to  Debts.  —  A  Man  may 
have  a  Right  of  Property  in  a  Defence. 

The  term  "  property  "  as  nsed  in  the  constitutional  prohibi- 
tion includes  every  right  to  the  use,  possession,  enjoyment,  or 
recovery  of  land,  goods,  or  money  which  the  law  will  vindicate 
if  assailed,  or  that  can  be  enforced  as  a  defence  or  cause  of 
action.^  As  the  obligation  of  a  contract  may  be  impaired  by 
abrogating  the  remedy,  so  a  like  result  will  follow  in  the  case 
of  property ;  and  if  the  action  of  ejectment  were  repealed,  and 
no  effectual  means  of  redress  given  in  its  place,  the  legislature 
would  become  the  accomplice  of  every  intruder  on  another's 
land,  and  the  owner  be  as  much  deprived  by  the  State  as  if 
her  officers  had  entered  and  turned  him  out.  So  every  citi- 
zen has  an  inherent  right  to  the  use  of  the  navigable  streams 
and  highways,  which  partakes  of  the  nature  of  propert}-,  and 
may  treat  an  act  of  assembly  by  which  an  inefficient  remedy  is 
substituted  for  that  provided  by  the  common  law  as  a  depri- 
vation without  due  process.^  Conversely,  he  who,  by  taking 
away  my  means  of  answering  or  satisfying  a  demand,  obliges 

1  Rhines  v.  Clark,  51  Pa.  96;  Barclay  R.  R.  Co.  v.  Ingham,  36  Id.  201. 

2  Rhines  y.  Clark,  51  Pa.  96. 


824  CHOSES  IN  ACTION  ARE  PROPERTY. 

me  to  render  what  I  do  not  owe,  deprives  me  as  effectually 
as  if  he  wrested  something  that  is  my  own  directly  from  my 
grasp ;  and  so  when  I  am  precluded  from  recovering  what  is 
due  to  me.  Choses  in  action  are  consequently  as  much  prop- 
erty as  choses  in  possession ;  the  one  being  a  vested  right  to 
obtain  the  thing  with  the  certainty  of  obtaining  it  by  resort- 
ing to  the  requisite  proceedings  unless  there  is  good  defence, 
and  the  other  a  vested  right  to  the  thing  after  it  has  been 
obtained.^ 

The  State  legislatures  are  expressly  forbidden  to  impair  the 
obligation  of  contracts ;  but  if  this  prohibition  were  repealed, 
an  implied  prohibition  would  still  result  fi'om  the  clause  for- 
bidding deprivation.  The  right  need  not  be  immediate,  and 
may  depend  on  a  remote  event  that  may  never  occur ;  but  the 
thing  to  which  it  relates  must  not  be  so  far  another's  that  he 
can,  by  disposing  of  it  or  converting  it  to  his  own  use,  defeat 
the  right.  A  bequest  over  to  B  of  so  much  of  a  bequest  to 
A  as  the  latter  does  not  use,  will  not  confer  a  right  of  prop- 
erty on  B,  because  the  entire  right  is,  in  the  contemplation  of 
law,  in  the  first  taker.  An  heir  may  be  said  to  have  a  right 
to  the  estate  of  his  ancestor;  but  it  is  not  property,  because  it 
will  fail  if  the  ancestor  makes  a  deed  or  will.  In  like  manner, 
as  a  remainder  or  reversion  after  an  estate-tail  might  be 
divested  if  the  tenant-in-tail  saw  fit  to  suffer  a  common 
recovery,  it  was  not  "  property  "  within  the  meaning  of  the 
constitutional  prohibition  ;  ^  and  while  a  husband's  right  to 
the  existing  choses  in  action  or  chattels  of  his  wife  cannot  be 
taken  from  him  by  a  statute,  the  legislature  may  well  provide 
that  her  subsequent  acquisitions  shall  be  exclusively  her  own.^ 
For  like  reasons  the  right  of  survivorship  incident  to  joint 
tenancy  is  subject  to  legislative  control,  and  may  be  abro- 
gated, because  the  statute  does  no  more  than  any  one  of  the 

1  Westervelt  v.  Gregg,  12  N.  Y.  202,  208;  Norris  v.  Beyea,  13  Id.  274, 
288;  Dunn  v.  Sargent,  101  Mass.  336. 

2  De  Mill  V.  Lockwood,  3  Blatchford,  56. 

»  Westervelt  v.  Gregg,  12  N.  Y.  202.  See  Moninger  v.  Ritter,  104 
Pa.  298,  where  the  principle  was  applied  to  the  husband's  tenancy  by  the 
curtesy  in  land  acquired  subsequently  to  the  statute. 


AN  EXPECTANCY  IS  NOT  PROPEETY.        825 

tenants  might  have  effected  by  conveying  his  interests  to  a 
stranger  or  instituting  proceedings  in  partition.^ 

If  this  principle  is  carried  to  its  legal  results,  it  will  follow 
that  there  can  be  no  right  of  property  or  obligation  in  a  con- 
tract which  cannot  be  enforced  without  the  consent  of  the 
debtor,  and  consequently  none  in  the  agreements  made  or 
debts  due  by  a  State.  Such  at  least  would  seem  to  be  the 
view  taken  in  the  recent  case  of  The  Railroad  Co.'z;.  Thompson,^ 
where  it  was  held  that  Tennessee  might  withdraw  the  consent 
which  she  had  given  to  be  sued  in  her  courts  for  the  demand 
in  question,  because  were  proceedings  instituted  by  the  cred- 
itor and  carried  to  a  successful  result,  the  courts  would  have 
no  power  to  issue  an  execution,  and  the  judgment  would 
remain  a  dead  letter  unless  the  legislature  thought  fit  to  make 
an  appropriation. 

A  chose  in  action,  whether  ex  contractu  or  ex  delicto^ 
obviously  does  not  cease  to  be  property,  within  the  constitu- 
tional safeguard  on  passing  into  judgment,  and  on  the  contrary 
acquires  a  higher  claim  to  consideration ;  but  a  law  which 
incidentally  renders  the  amount  less  susceptible  of  collection 
is  not  necessarily  a  deprivation,^  because  procedure  is  under 
the  control  of  the  legislature  and  may  be  regulated  as  they 
think  proper,  so  long  as  a  sufiicient  remedy  is  given  or  remains.* 

It  is  clear,  under  the  foregoing  principles,  that  a  mere  ex- 
pectancy—  as,  for  instance,  the  right  of  a  child  to  succeed 
to  the  estate  of  a  living  parent  —  is  not  property  in  the  sense 
of  the  constitutional  prohibition,  because  Nemo  est  hceres  viven- 
tis,  and  no  one  can  have  a  valid  claim  to  that  which  be- 
longs to  another  who  may  dispose  of  it  at  pleasure.^  Hence 
the  legislature  may  provide  that  children  born  out  of  wedlock 
shall  share  in  their  mother's  estate,  or  even  prefer  them  to 
her  lawful  offspring,  although  the  power  must  be  exercised 
during  the  parent's  lifetime,  and  will  cease  at  her  death. 

1  Wildes  V.  Van  Vporhis,  15  Gray,  147;  Dunn  v.  Sargent,  101  Mass.  336; 
Bombaugh  v.  Bombaugh,  11  S.  &  R.  192. 

2  101  U.  S.  339. 

8  Louisiana  v.  New  Orleans,  109  U.  S.  285,  295. 

*  See  ante,  p.  705.  *  See  Dunn  v.  Sargent,  101  Mass.  336. 


826  DOWER  AND  TENANCY  BY  THE  CUKTESY. 

It  is  on  a  like  ground  that  estates-tail  may  be  converted  leg- 
islatively into  estates  in  fee,  although  the  effect  is  to  preclude 
the  reversioner  or  remainder-men.  For  as  the  tenant-in-tail 
has  the  jus  disponendi^  the  land  is  virtually  his,  and  the  statute 
does  no  more  than  he  might  do  through  a  common  recovery .^ 

Agreeably  to  some  of  the  decisions,  an  inchoate  right  of 
dower  is  not  an  estate  or  interest,  but  a  claim  depending  on 
contingencies  that  may  never  take  effect,  which  cannot  be 
assigned  or  granted,  and  is  not  therefore  such  propert}^  as 
the  Constitution  intended  to  protect.^  The  right  does  not, 
according  to  this  view,  result  from  the  marriage  contract,  but 
stands  on  the  foundation  of  positive  law,  and  will  conse- 
quentl}^  fail  if  the  law  is  changed  before  it  goes  into  effect.^ 
A  like  view  has  been  taken  in  other  cases  of  tenancy  by  the 
curtesy  while  depending  solely  on  the  marriage,  and  before 
it  becomes  absolute  through  the  birth  of  issue.* 

The  point  actually  determined  in  Moore  v.  The  Mayor  of 
New  York  was,  however,  that  the  husband's  land  might  be 
taken  by  virtue  of  the  right  of  eminent  domain  without 
notifying  the  wife,  and  that  the  entire  compensation  might  be 
paid  to  him  as  the  owner  of  the  fee.  It  was  a  question  of 
procedure  rather  than  title,  and  does  not  warrant  the  inference 
that  the  right  of  a  wife  to  have  one  third  of  her  husband's 
estate  set  apart  for  her  at  his  death  can  be  defeated  arbitra- 
rily by  a  statute  passed  after  the  marriage.  Such  certainly  was 
not  the  inclination  of  the  common  law,  which,  on  the  contrary, 
favored  dower  on  equitable  as  well  as  legal  grounds.  It  was 
therefore  valid  not  only  as  between  the  parties,  but  as  against 
a  purchaser  for  value  from  the  husband,  and  the  widow  might 
come  into  equity  for  discovery  in  aid  of  her  legal  remedy.^ 

1  Cooley  on  Constitutional  Limitations,  360;  De  Mill  v.  Lockwood,  3 
Blatch.  56. 

2  Barbour  t'.  Barbour,  46  Me.  9;  Moore  v.  The  Mayor  of  New  York, 
8N.  Y.  110;  Pratt  v.  Taft,  14  Mich.  191;  Magee  v.  Young,  40  Miss. 
164;  Melizet's  Appeal,  17  Pa.  449. 

8  Barbour  v.  Barbour,  46  Me.  9. 

*  Long  V.  Marvin,  15  Mich.  60;  Barbour  v.  Barbour,  46  Me.  9.  See 
Monenger  v.  Ritner,  104  Pa.  298. 

fi  Story's  Eq.  Jurisprudence,  sections  627,  628,  629. 


wife's  choses  in  action.  827 

Such  was  the  view  taken  by  the  Supreme  Court  of  Massachu- 
setts in  Dunn  v.  Sargent,^  although  the  point  did  not  actually 
arise.  In  like  manner,  although  the  husband's  right  as  tenant 
by  the  curtesy  is  contingent  on  the  birth  of  issue  and  the  death 
of  his  wife,  it  still  is  property  on  which  he  may  have  relied  as 
a  means  of  fulfilling  the  obligation  which  will  devolve  upon 
him  in  the  event  of  his  becoming  a  father ;  and  if  it  can  be 
taken  from  him  retroactively,  no  contingent  right  is  secure. 

Whatever  the  rule  may  be  on  this  head,  a  right  is  not  less 
property,  within  the  constitutional  safeguard,  because  it  de- 
pends on  a  future  event  and  the  persons  entitled  under  it  are 
uncertain  or  not  yet  born.  Such  an  interest  may  not  be 
capable  of  assignment,  but  it  is  something  which  the  owner  is 
entitled  to  retain  and,  should  it  ever  become  consummate,  to 
enjoy.  As  was  said  in  Westervelt  v.  Gregg,^  while  a  chose  in 
action  differs  from  a  chose  in  possession  in  being  a  right  to 
sue  for  and  recover,  as  distinguished  from  a  right  to  hold  and 
enjoy,  it  is  none  the  less  a  right  which  will  presumably  result 
in  fruition,  and  that  should  be  beyond  the  reach  of  arbitrarj'- 
power.  No  one  would  contend  that  the  legislature  can  con- 
fiscate a  debt  because  it  is  valueless  unless  the  debtor  is  will- 
ing or  can  be  compelled  to  pay.  So,  though  an  assignee  of  a 
chose  in  action  has  not  the  legal  title,  but  simply  a  power  or 
authority  to  collect,  arising  from  an  implied  contract  with  the 
assignor,  it  still  is  property,  and  protected  by  the  constitutional 
guaranty.  So  a  husband's  common  law  right  to  his  wife's 
chose  in  action  was  as  much  beyond  the  reach  of  retroactive 
legislation  as  his  lands  or  chattels,  although  it  could  only  be 
exercised  during  coverture  or  under  letters  testamentary  or 
of  administration,  and  w^ould  fail  if  he  died  while  the  claim 
was  still  outstanding  and  neither  reduced  to  possession  nor 
assigned.^  The  court  held,  in  Westervelt  v.  Gregg,  that  he 
was  virtually  an  assignee  of  every  claim  which  his  wife  held 
at  the  date  of  the  marriage  or  which  accrued  subsequently 
during  coverture  while  the  law  was  unchanged ;  and  if,  like 
an  assignee,  he  had  a  mere  authority  to  collect,  it  was  still 

1  101  Mass.  336.  «  Westervelt  v.  Gregg,  12  N.  Y.  202. 

2  12  N.  Y.  202. 

VOL.  n.  —  12 


828  CONTINGENT  INTERESTS 

an  irrevocable  power,  coupled  with  an  interest,  of  which  he 
could  not  constitutionally  be  deprived.^ 

In  Dunn  v.  Sargent,^  a  husband's  interest  in  a  remainder 
in  personal  property  already  bequeathed  to  his  wife  in  the 

1  In  Westervelt  v.  Gregg,  12  N.  Y.  202,  207,  "  the  counsel  for  the  appel- 
lant referred  in  argument  to  the  case  of  Clark  v.  McCreary,  12  Smedes  & 
Marsh.  347,  which  was  decided  under  a  statute  of  Mississippi,  and  pre- 
sented a  question  similar  to  that  which  is  raised  here.  In  that  case  the 
court  placed  their  opinion  upon  the  ground  that  the  right  of  the  husband  to 
reduce  his  wife's  choses  in  action  into  possession  was  not  a  vested  interest, 
—  that  is,  as  they  explain  it,  the  property  is  not  vested  in  possession;  and 
they  quote  a  definition,  given  by  Chancellor  Kent,  that  '  an  estate  is  vested 
when  there  is  an  immediate  right  of  present  enjoyment,  or  at  present  fixed 
right  of  future  enjoyment '  (4  Kent  Com.  202).  They  further  say  that 
'  the  husband's  interest  in  the  wife's  choses  in  action  is  a  qualified  right, 
upon  condition  that  he  reduce  them  into  possession  during  coverture. 
This  condition  is  manifestly  a  condition  precedent,  and  it  is  indispensable 
that  the  condition  precedent  should  take  place  before  the  estate  can  vest. 
In  this  case  the  law  was  passed  before  the  condition  was  performed,  and 
intercepted  the  right  of  the  husband.'  Now,  it  seems  to  me  that  the 
whole^  of  this  reasoning  is  founded  upon  a  fallacy.  A  right  to  reduce  a 
chose  in  action  to  possession  is  one  thing,  and  a  right  to  the  property 
which  is  the  result  of  the  process  by  which  the  chose  in  action  has  been 
reduced  to  possession  is  another  and  a  different  thing.  But  they  are  both 
equally  vested  rights.  The  one  is  a  vested  right  to  obtain  the  thing,  with 
the  certainty  of  obtaining  it  by  resorting  to  the  necessary  proceedings, 
unless  there  be  a  legal  defence;  and  the  other  is  a  vested  right  to  the  thing 
after  it  has  been  obtained.  This  distinction  is  entirely  lost  sight  of  in  the 
opinion  of  the  learned  court  in  the  case  last  cited.  Upon  the  argument 
of  this  appeal  the  counsel  for  the  appellant  defined  the  interest  of  the 
husband  in  his  wife's  legacy  to  be  an  authority  to  collect  it.  I  do  not  ob- 
ject to  this  definition  if  we  add  the  words  *  for  his  own  benefit.'  In  the 
case  of  Gallego  v.  Gallego,  2  Brock,  286,  Chief-Justice  Marshall  said, 
*  The  husband  has  no  interest  in  the  legacy  of  his  wife,  he  has  only  a 
power  to  make  it  his  by  reducing  it  to  possession.'  But  the  words  '  au- 
thority '  and  '  power,'  as  here  used,  are  synonymous  with  '  right.'  This 
right,  it  is  true,  is  personal,  and  no  one  can  exercise  it  but  the  husband 
himself  or  his  assigns,  or,  under  certain  circumstances,  his  representatives. 
It  is  not  a  right  which  can  be  taken  in  execution  (Price  o.  Sessions,  3  How. 
624),  neither  will  a  court  of  equity  compel  a  husband  to  exercise  it  in 
favor  of  his  creditors  (2  Brock,  288) ;  but  it  is  none  the  less  valuable 
to  the  husband  on  that  account." 

2  101  Mass.  336. 


AND  BEMAINDERS   ARE   PROPERTY.  829 

event  of  her  surviving  her  brother,  to  whom  it  had  been  left 
for  life,  was  in  like  manner  held  to  be  so  far  vested  that  it 
could  not  be  taken  away  by  a  statute  passed  before  the  happen- 
ing of  the  contingency  without  compensation,  although  the  first 
holder  was  still  living,  and  it  was  uncertain  whether  the  be- 
quest over  would  take  effect.  The  court  said,  "  It  is  quite 
clear  that  if,  by  the  termination  of  the  life  estate  of  her 
brother  Benjamin,  the  contingency  upon  which  her  husband 
was  entitled  to  reduce  the  property  to  his  own  possession 
had  happened  before  the  passage  of  the  statutes,  the  fact 
that  he  had  not  actually  exercised  that  right  would  not  sub- 
ject his  interest  in  the  property  to  their  operation.^  Even 
during  the  continuance  of  the  life  estate  his  right  in  this 
property  of  his  wife  was,  according  to  the  adjudication  of  this 
court  in  Gardner  v.  Hooper,^  a  valuable  and  assignable  inter- 
est, which,  though  contingent  in  possession  and  enjoyment, 
was  vested  in  right,  and  of  which,  therefore,  he  could  not  be 
deprived  by  act  of  the  legislature  without  compensation.^ 
This  interest  was  wholly  different  from  a  husband's  expecta- 
tion of  a  right  in  property  to  accrue  to  his  wife  after  the  pas- 
sage of  the  statute,  which,  like  that  of  an  heir  in  the  estate 
of  his  ancestor,  would  have  been  an  interest  vested  neither 
in  possession  nor  in  right,  but  a  bare  possibility,  and  therefore 
liable  to  be  defeated  by  a  change  in  the  law  at  any  time  be- 
fore the  right  accrued.  It  has  indeed  been  held  by  the  courts 
of  some  States  that  a  wife's  right  of  dower  may  be  cut  off  by 
an  act  of  the  legislature  at  any  time  before  it  becomes  consum- 
mate upon  the  death  of  the  husband.*  But  those  decisions 
proceed  upon  the  theory  that  such  a  right  is  not  an  interest 
in  property,  but  a  mere  possibility,  created  by  law,  and  not 
in  any  sense  vested  or  assignable  until  after  the  husband's 
death.  And  it  may  well  be  doubted  whether  they  are  con- 
sistent with  the  law  of  this  Commonwealth,  by  which  an  in- 
choate right  of  dower  is  recognized  as  something  more  than  a 

1  Westei-velt  v.  Gregg,  12  N.  Y.  202;  Norris  v.  Beyea,  13  Id.  274,288. 

2  3  Gray,  398. 

8  Jackson  v.  Sublett,  10  B.  Monr.  467. 

*  See  the  cases  collected  in  2  Scribner  on  Dower,  c.  1. 


830  A  man's  papers  are  property. 

possibility,  and  as  an  interest  in  property  which  equity  will, 
under  some  circumstances,  protect  at  the  suit  of  the  wife  in 
the  lifetime  of  the  husband."  ^ 

It  needs  no  argument  to  prove  that  a  man's  papers  are 
property  which  may  be  of  the  utmost  value  and  significance, 
and  that  an  arbitrary  seizure  of  them  is  among  the  depriva- 
tions which  the  Fifth  and  Fourteenth  Amendments  forbid.^ 
But  the  question  has  another  and  important  bearing,  because 
the  Fifth  Amendment  provides,  in  accordance  with  the  com- 
mon law,  that  "no  man  shall  be  compelled  in  a  criminal  pro- 
ceeding to  bear  witness  against  himself,"  while  the  Fourth 
prohibits  "unreasonable  searches  and  seizures."^  These 
clauses  relate  only  to  the  United  States ;  but  the  Fourteenth 
Amendment,  that  "  no  State  shall  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,"  seems  broad 
enough  to  cover  the  same  ground,  because  the  compulsory 
extortion  of  a  man's  own  testimony  or  of  his  papers  to  be 
used  as  evidence  to  convict  him  of  crime  or  to  forfeit  his 
goods  is  an  abuse  of  process.*  A  conviction  obtained  by 
such  means  would  obviously  be  erroneous,  and  a  sentence 
of  fine  and  imprisonment  founded  upon  it  a  deprivation 
of  which  the  accused  might  justly  complain.  These  priv- 
ileges, which  came  with  the  colonists  from  England,  and 
were  engrafted  from  the  Englisli  Constitution  on  our  own, 
were  vindicated  in  the  memorable  trials  which  grew  out 
of  the  general  warrants  issued  by  the  Secretary  of  State, 
Lord  Halifax,  for  the  arrest  of  persons  charged  with  the 
publication  of  libels  against  the  government  in  the  North 
Briton,  and  British  Freeholder,  and  the  seizure  of  their 
papers.^ 

1  Davis  V.  Wetherell,  13  Allen,  63. 

2  Entick  V.  Carrington,  2  Wilson,  275;  19  State  Trials,  1029,  1066; 
Boyd  V.  The  United  States,  116  U.  S.  616. 

8  See  ante,  p.  509. 

*  See  Horstman  v.  KaufPman,  97  Pa.  147,  where  an  act  providing 
for  the  compulsory  examination  of  debtors  under  a  proceeding  issued 
to  attach  their  goods  on  the  ground  of  fraud  was  held  to  be  unconsti- 
tutional. 

6  Leach  v.  Mooney,  19  State  Trials,  1001;  3  Burr.  1G92,  1767;  Entick 


GENERAL  WAERANTS. 


831 


In  some  of  these  instances  the  warrant  was  simply  against 
the  authors,  printers,  and  publishers  of  the  North  Briton,  to 
take  their  papers,  without  naming  the  persons  to  be  appre- 
hended ;  in  others  the  persons  accused  were  named,  without 
specifying  the  papers  ;  and  they  all  gave  a  dangerous  latitude 
which  was  abused  by  the  messengers  to  whom  they  were  in- 
trusted for  execution.  Wilkes  and  some  sixteen  others  were 
taken  into  custody  under  the  instrument,  their  dwellings 
ransacked,  and  their  papers  carried  away  for  inspection  by 
the  officers  of  the  Crown.  They  brought  actions  of  trespass 
and  false  imprisonment  in  the  Common  Pleas,  which  were  sus- 
tained by  Chief-Justice  Pratt  ( afterwards  Lord  Camden);  and 
the  juries  gave  heavy  damages,  amounting  in  the  suit  of 
Wilkes  against  Lord  Halifax  to  four  thousand  pounds.  One 
of  these  cases  was  taken  on  a  writ  of  error  to  the  King's  Bench 
and  affirmed  ;  Lord  Mansfield  holding  the  warrant  illegal  be- 
cause two  things  ought  to  appear  in  every  such  instrument,  — 
that  an  offence  has  been  committed,  and  that  there  is  probable 
cause  for  believing  that  the  person  to  be  apprehended  was 
guilty  of  the  offence ;  and  a  general  warrant  leaves  the  latter 
point  to  an  officer  who  is  not  a  magistrate,  and  may  be  un- 
acquainted with  the  evidence.  In  another  case,  where  the 
person  was  named,  but  the  warrant  gave  a  general  authority 
to  take  all  his  books  and  papers,  without  specifying  which, 
Lord  Camden  dismissed  a  motion  for  a  new  trial  on  broader 
grounds.^  A  man  lias  a  right  of  property  in  his  papers 
which  cannot  be  taken  from  him  because  he  is  charged  with 
an  offence  of  which  he  may  be  innocent.  There  is  a  manifest 
difference  between  such  a  proceeding  and  a  search-warrant 
for  stolen  goods.  In  the  one  the  owner  is  simply  empowered 
to  retake  his  property  and  place  it  in  the  hands  of  a  public 
officer  until  the  felon's  coviction  entitles  him  to  restitution. 
In  the  other  his  property  is  taken  from  his  possession  to 
be  used  as  a  weapon  of  offence,  and  matters  that  were  in- 
tended only  for  his  own  eyes  divulged,  although  their  nature 

V.  Carrinffton,  Id.  1029;  Wilkes  v.  Wood,  Id.  1153;  1  Lloftt,  1;  Wilkes 
V.  Lord  Halifax.  2  Wilson,  25G:  19  State  Trials,  1406. 
1  Entick  V.  Carrington,  19  State  Trials,  1029. 


832  UNREASONABLE   SEARCHES 

may  be  such  that  they  cannot  be  made  public  without 
danger  to  his  liberty,  estate,  or  reputation.  "  The  great  end," 
he  said,  "  for  which  men  enter  into  society  is  to  secure  their 
property.  That  right  is  preserved  sacred  and  incommunicable 
in  all  instances  where  it  has  not  been  taken  away  or  abridged 
by  some  public  law  for  the  good  of  the  whole.  The  cases 
where  this  right  of  property  is  set  aside  by  positive  law  are 
various.  Distresses,  executions,  forfeitures,  taxes,  etc.,  are 
all  of  this  description,  wherein  every  man  by  common  consent 
gives  up  that  right  for  the  sake  of  justice  and  the  general 
good.  By  the  laws  of  England,  every  invasion  of  private  prop- 
erty, be  it  ever  so  minute,  is  a  trespass.  No  man  can  set  his 
foot  upon  my  ground  without  my  license,  but  he  is  liable  to 
an  action,  though  the  damage  be  nothing, — which  is  proved  by 
every  declaration  in  trespass,  where  the  defendant  is  called 
upon  to  answer  for  bruising  the  grass  and  even  treading  upon 
the  soil.  If  he  admits  the  fact,  he  is  bound  to  show,  by  way 
of  justification,  that  some  positive  law  has  justified  or  excused 
him.  The  justification  is  submitted  to  the  judges,  who  are  to 
look  into  the  books  and  see  if  such  a  justification  can  be 
maintained  by  the  text  of  the  statute  law  or  by  the  princi- 
ples of  the  common  law.  If  no  such  excuse  can  be  found  or 
produced,  the  silence  of  the  books  is  an  authority  against  the 
defendant,  and  the  plaintiff  must  have  judgment.  According 
to  this  reasoning,  it  is  now  incumbent  upon  the  defendants  to 
show  the  law  by  which  this  seizure  is  warranted.  If  that 
cannot  be  done,  it  is  a  trespass. 

*'  Papers  are  the  owner's  goods  and  chattels  ;  they  are  his 
dearest  property ;  and  are  so  far  from  enduring  a  seizure  that 
they  will  hardly  bear  an  inspection  ;  and  though  the  eye  can- 
not by  the  laws  of  England  be  guilty  of  a  trespass,  yet  where 
private  papers  are  removed  and  carried  away,  the  secret  nature 
of  those  goods  will  be  an  aggravation  of  the  trespass,  and  de- 
mand more  considerable  damages  in  that  respect.  Where  is 
the  written  law  that  gives  any  magistrate  such  a  power?  I 
can  safely  answer,  there  is  none ;  and,  therefore,  it  is  too  much 
for  us,  without  such  authority,  to  pronounce  a  practice  legal 
which  would  be  subversive  of  all  the  comforts  of  society.  .  .  . 


AND   SEIZURES. 


833 


"  Lastly,  it  is  urged,  as  an  argument  of  utility,  that  such  a 
search  is  a  means  of  detecting  offenders  by  discovering  evi- 
dence. I  wish  some  cases  had  been  shown  where  the  law 
forceth  evidence  out  of  the  owner's  custody  by  process. 
There  is  no  process  against  papers  in  civil  causes.  It  has 
been  often  tried,  but  never  prevailed.  Nay,  where  the  adver- 
sary has  by  force  or  fraud  got  possession  of  your  own  proper 
evidence,  there  is  no  way  to  get  it  back  but  by  action.  In 
the  criminal  law  such  a  proceeding  was  nev^  heard  of;  and 
yet  there  are  crimes  —  such,  for  instance,  as  murder,  rape, 
robbery,  and  housebreaking,  to  say  nothing  of  forgery  and 
perjury  —  that  are  more  atrocious  than  libelling.  But  our  law 
has  provided  no  paper-search  in  these  cases  to  help  forward 
the  conviction.  Whether  this  proceedeth  from  the  gentleness 
of  the  law  towards  criminals,  or  from  a  consideration  that  such 
a  power  would  be  more  pernicious  to  the  innocent  than  use- 
ful to  the  public,  I  will  not  say.  It  is  very  certain  that  the 
law  obligeth  no  man  to  accuse  himself,  because  the  necessary 
means  of  compelling  self-accusation,  falling  upon  the  innocent 
as  well  as  the  guilty,  would  be  both  cruel  and  unjust;  and  it 
woiild  seem  that  search  for  evidence  is  disallowed  upon  the 
same  principle.  Then,  too,  the  innocent  would  be  confounded 
with  the  guilty." 

Great  as  was  the  weight  due  to  these  principles  as  they 
stood  in  the  books  of  the  common  law,  they  derived  new 
value  from  the  recent  case  of  Boyd  v.  The  United  States,^ 
where  Lord  Camden's  judgment  was  cited  as  the  source  of 
the  prohibition  of  unreasonable  searches  and  seizures  in  the 
Fourth  Amendment,  and  as  a  guide  which  should  be  followed 
in  averting  the  abuses  which  that  is  intended  to  prevent. 
The  question  arose  under  an  act  of  Congress  authorizing  the 
courts  of  the  United  States  *'  in  revenue  cases,  on  motion  of 
the  government  attorney,  to  require  the  defendant  or  claim- 
ant to  produce  in  court  his  private  books,  invoices,  and  papers, 
or  else  the  allegations  of  the  hbel  to  be  taken  as  confessed.'* 
This  act,  like  some  other  chapters  of  the  Revised  Statutes, 
was  drawn  in  view  of  the  recent  civil  war,  with  a  disposi- 

1  116  U.  S.  616. 


834         A  MAN  SHALL  NOT  BE  COMPELLED 

tion  to  carry  the  prerogative  of  the  government  to  the  ut- 
most verge  in  cases  which  were  more  wisely  dealt  with  by  the 
statesmen  who  framed  the  Constitution  and  set  its  wheels 
in  motion.  The  judiciary  act  of  1789  confined  the  right  to 
compel  the  production  of  books  and  papers  to  "  cases  and 
under  circumstances  where  the  parties  might  be  compelled  to 
produce  the  same  in  the  ordinary  course  of  proceedings  in 
chancery."  There  could  be  no  surer  test  of  the  method  best 
calculated  to  promote  the  ends  of  justice.  As  Mr.  Justice 
Bradley  remarked,  the  Court  of  Chancery  had  been  for  gen- 
erations engaged  in  devising  the  rules  to  be  observed  in 
granting  discovery  on  bills  filed  for  that  purpose.  To  go  far- 
ther might  well  be  deemed  hazardous ;  and  one  of  these  rules 
was  not  to  decree  a  discovery  which  might  tend  to  convict 
the  party  of  a  crime  or  to  forfeit  his  property.  A  compulsory 
discovery,  by  extorting  the  party's  oath  or  compelling  the 
production  of  his  papers,  was  contrary  to  the  principles  of  the 
common  law  and  abhorrent  to  the  feelings  of  Englishmen  and 
Americans.  It  might  suit  the  purposes  of  a  despotic  govern- 
ment, but  could  not  endure  the  atmosphere  of  personal  lib- 
erty and  political  freedom.  If  the  proceeding  was  criminal 
in  effect  to  enforce  a  penalty  or  forfeiture,  it  mattered  not 
that  it  was  civil  in  form,  or  in  rem^  and  did  not  impose  a 
personal  obligation.  It  might  be  aimed  at  the  goods,  but 
the  loss  would  fall  on  the  owner ;  and  he  ought  not  to  be 
compelled  to  produce  evidence  which  would  militate  against 
himself  as  the  price  of  being  allowed  to  claim  or  vindicate 
his  property.  The  act  of  Congress  was  consequently  uncon- 
stitutional, and  it  followed  that  the  order  which  had  been 
made  under  it  for  the  production  of  the  invoice,  and  the 
admission  of  the  invoice  in  evidence,  were  erroneous.  The 
judgment  of  the  circuit  court  must  therefore  be  reversed.^ 

1  *'  The  principal  question,  however,  remains  to  be  considered.  Is  a 
search  and  seizure,  or,  what  is  equivalent  thereto,  a  compulsory  produc- 
tion of  a  man's  private  papers,  to  be  used  in  evidence  against  him  in  a 
proceeding  to  forfeit  his  property  for  alleged  fraud  against  the  revenue 
laws,  —  is  such  a  proceeding  for  such  a  purpose  an  '  unreasonable  search 
and  seizure  '  within  the  meaning  of  the  Fourth  Amendment  of  the  Con- 


TO   CRIMINATE   HIMSELF.  836 

In  Horstman  v.  Kaufman  ^  an  act  of  assembly  authorizing 
the  compulsory  examination  of  a  debtor  under  a  charge  that 

stitution,  or  is  it  a  legitimate  proceeding?  It  is  contended  by  the  coun- 
sel for  the  government  that  it  is  a  legitimate  proceeding,  sanctioned  by 
long  usage  and  the  authority  of  judicial  decision.  No  doubt  long  usage, 
acquiesced  in  by  the  courts,  goes  a  long  way  to  prove  that  there  is  some 
plausible  ground  or  reason  for  it  in  the  law  or  hi  the  historical  facts 
which  have  imposed  a  particular  construction  of  the  law  favorable  to 
such  usage.  It  is  a  maxim  that  Consuetudo  est  optimus  interpres  iegum  ; 
and  another  maxim  that  Contemporanea  expositio  est  optima  et  fortissima  in 
lege.  But  we  do  not  find  any  long  usage,  or  any  contemporary  construc- 
tion of  the  Constitution,  which  would  justify  any  of  the  acts  of  Congress 
now  under  consideration.  As  before  stated,  the  act  of  1863  was  the  first 
act  in  this  country,  and,  we  might  say,  either  in  this  country  or  in  Eng- 
land, so  far  as  we  have  been  able  to  ascertain,  which  authorized  the 
search  and  seizure  of  a  man's  private  papers,  or  the  compulsory  productioa 
of  them  for  the  purpose  of  using  them  in  evidence  against  him  in  a  crim- 
inal case  or  in  a  proceeding  to  enforce  the  forfeiture  of  his  property. 
Even  the  act  under  which  the  obnoxious  writs  of  assistance  were  issued, 
13  &  14  Car.  II.  chap.  11,  sect.  5,  did  not  go  as  far  as  this,  but  only  au- 
thorized the  examination  of  ships  and  vessels  and  persons  found  therein, 
for  the  purpose  of  finding  goods  prohibited  to  be  imported  or  exported,  or 
on  which  the  duties  were  not  paid,  and  to  enter  into  and  search  any  sus- 
pected vaults,  cellars,  or  warehouses  for  such  goods.  The  search  for  and 
seizure  of  stolen  or  forfeited  goods,  or  goods  liable  to  duties  and  concealed 
to  avoid  the  payment  thereof,  are  totally  different  things  from  a  search 
for  and  seizure  of  a  man's  private  books  and  papers  for  the  purpose  of 
obtaining  information  therein  contained,  or  of  using  them  as  evidence 
against  him.  The  two  things  differ  toto  coelo.  In  the  one  case  the  gov- 
ernment is  entitled  to  the  possession  of  the  property;  in  the  other  it  is 
not.  The  seizure  of  stolen  goods  is  authorized  by  the  common  law,  and 
the  seizure  of  goods  forfeited  for  a  breach  of  the  revenue  laws,  or  concealed 
to  avoid  the  duties  payable  on  them,  has  been  authorized  by  English  stat- 
utes for  at  least  two  centuries  past:  12  Car.  11.  chap.  19;  13  &  14  Car.  II. 
chap.  11;  6  &  7  Wm.  &  Mary,  chap.  1;  Geo.  I.  chap.  21;  26  Geo.  III. 
chap.  59;  29  Geo.  III.  chap.  68,  sect.  153,  etc.;  and  see  the  article  '  Ex- 
cise,' etc.,  in  Barn's  Justices,  and  Williams's,  passim,  and  Evans's  Stat- 
utes, ii.  221,  sub-pages  176,  190,  225,  361,  431,  447;  and  the  like 
seizures  have  been  authorized  by  our  own  revenue  acts  from  the  com- 
mencement of  the  government.  The  first  statute  passed  by  Congress  to 
regulate  the  collection  of  duties,  the  act  of  July  31,  1789,  1  Stat.  29,  43, 
contains  provisions  to  this  effect.     As  this  act  was  passed  by  the  same 


79  Pa.  147. 


836  LEGISLATIVE   REVIVAL  OF 

he  had  fraudulently  parted  with  and  concealed  his  property  in 
order  to  defraud  his  creditors,  and  requiring  the  production 
of  his  books,  was  declared  unconstitutional  because,  although 
the  proceeding  was  civil,  the  debtor  might  be  obliged  to 
reveal  that  which  was  a  misdemeanor  according  to  the 
criminal  law  of  Pennsylvania. 

The  inquiry  whether  a  demand  which  has  been  barred  by 
the  statute  of  limitations  can  be  revived  by  subsequent  legis- 
lation, is  one  about  which  there  has  been  some  difference  of 
opinion.  Such  a  statute  ma}^  operate  to  extinguish  the  right 
or  merely  preclude  the  remedy.  In  the  former  case  the  leg- 
islature cannot  give  life  to  that  which  for  all  intents  and  pur- 
poses is  extinct ;  ^  but  the  rule  is  not  so  clear  as  regards  the 
latter.  It  has  been  said  that  a  debt  or  chose  in  action  sub- 
sists notwithstanding  the  efflux  of  the  time  prescribed  for  en- 
forcing it  by  suit,  and  the  legislature  may  revive  the  right 
to  sue.2     An  adverse  possession  for  twenty-one  years  is,  on 

Congfress  which  proposed  for  adoption  the  original  amendments  to  the 
Constitution,  it  is  clear  that  the  members  of  that  body  did  not  regard 
searches  and  seizures  of  this  kind  as  '  unreasonable,'  and  they  are  not 
embraced  within  the  prohibition  of  the  amendment.  So,  also,  the  super- 
vision authorized  to  be  exercised  by  officers  of  the  revenue  over  the 
manufacture  or  custody  of  excisable  articles,  and  the  entries  thereof  in 
books  required  by  law  to  be  kept  for  their  inspection,  are  necessarily  ex- 
cepted out  of  the  category  of  unreasonable  searches  and  seizures.  So, 
also,  the  laws  which  provide  for  the  search  and  seizure  of  articles  and 
things  which  it  is  unlawful  for  a  person  to  have  in  his  possession  for  the 
purpose  of  issue  or  disposition,  such  as  counterfeit  coin,  lottery  tickets, 
implements  of  gambling,  etc.,  are  not  within  this  category.  Common- 
wealth V.  Dana,  2  Metcalf  (Mass.),  329.  Many  other  things  of  this  char- 
acter might  be  enumerated.  The  entry  upon  premises,  made  by  a  sheriff 
or  other  officer  of  the  law  for  the  purpose  of  seizing  goods  and  chattels  by 
virtue  of  a  judicial  writ,  such  as  an  attachment,  a  sequestration,  or  an 
execution,  is  not  within  the  prohibition  of  the  Fourth  or  Fifth  Amend- 
ment, or  any  other  clause  of  the  Constitution;  nor  is  the  examination  of 
a  defendant  under  oath  after  an  ineffectual  execution,  for  the  purpose  of 
discovering  secreted  property  or  credits  to  be  applied  to  the  payment  of  a 
judgment  against  him,  obnoxious  to  those  amendments."  Boyd  v. 
United  States,  116  U.  S.  622. 

1  Moore  v.  The  State,  43  N.  J.  Law,  202. 

2  Campbell  v.  Holt,  115  U.  S.  620. 


RIGHT  BAKRED   BY   STATUTE. 


831 


the  contrary,  held  to  confer  an  absolute  estate  on  the  tenant 
as  against  every  one  whose  right  had  accrued,  and  might 
have  been  enforced  by  entry.  The  outstanding  title  is  ex- 
tinguished or  destroyed,  not  suspended ;  and  an  act  assuming 
to  reinstate  the  owner  is  not  so  much  the  restoration  of  a 
former  right  as  the  creation  of  a  new  one.^  "  The  lapse  of 
time,"  said  Swayne,  J.,  in  Leffingwell  v.  Warren,  "  limited  by 
such  statutes,  not  only  bars  the  remedy,  but  it  extinguishes 
the  right,  and  vests  a  perfect  title  in  the  adverse  holder.  It 
tolls  the  entry  of  the  person  having  the  right,  and  conse- 
quently, though  the  very  right  be  in  the  defendant,  yet  he 
cannot  justify  his  ejecting  the  plaintiff."  ^  "  Suppose,"  said 
Rogers,  J.,  in  McCabe  v.  Emerson,  "  after  a  title  acquired  to 
a  tract  of  land  under  the  act  of  limitations,  the  legislature 
should  extend  the  time  ;  or  suppose  a  writ  of  error  barred  by 
lapse  of  time,  —  would  any  person  contend  that  the  legisla- 
ture could  constitutionally  affect  the  rights  which  had  thus 
become  vested  ?  "  ^ 


1  Ervine's  Appeal,  16  Pa.  256,  265;  Moore  v.  Luce,  29  Id.  262;  Mor- 
ford.v.  Cook,  24  Id.  92;  Robb  v.  Harlan,  7  Id.  292;  Palairet's  Appeal, 
67  Id.  479,  494;  McCabe  v.  Emerson,  18  Id.  112;  Leffingwell  v.  Warren, 
2  Black,  599;  Croxall  v.  Shererd,  5  Wallace,  268-,  Dickerson  v.  Colgrove, 
100  U.  S.  578,  583;  Bicknell  v.  Comstock,  113  Id.  149;  Campbell  v.  Holt, 
115  Id.  620,  623. 

^  Buller's  N.  P.  103;  Stocker  y.  Berny,  1  Lord  Raymond,  741 ;  Taylor 
V.  Harde,  1  Burr.  60;  Barwick  v.  Thompson,  7  Term  Reps.  492;  Beck- 
ford  V.  Wade,  17  Vesey,  87;  Moore  v.  Luce,  29  Pa.  260;  Thompson  v. 
Greene,  4  Ohio  St.  223;  Newcombe  v.  Leavitt,  22  Ala.  631;  Wynn  v. 
Lee,  5  Ga.  217;  Chiles  v.  Jones,  4  Dana,  483. 

8  See  Palairet's  Appeal,  67  Pa.  479,  494;  Billings  v.  Hall,  7  Cal.  4; 
Knox  V.  Cleveland,  13  Wis.  245;  Baggs's  Appeal,  43  Pa.  512.  See  Davis 
V.  Meade,  13  S.  &  R.  221. 

"  It  has  been  repeatedly  adjudged  that  a  statute  which  bars  all  remedy 
gives  a  perfect  title,  with  all  its  inoidents.  Knox  v.  Cleveland,  13  Wis. 
249 ;  Moore  v.  Luce,  29  Pa.  262 ;  Leffingwell  v.  W^arren,  2  Black 
(U.  S.),  599;  2  Wash.  Real  Prop.  574;  Cooley's  Const.  Lim.  365.  In 
Moore  v.  Luce,  Chief-Justice  Lewis  said  laws  never  deliberately  take 
away  all  remedy  without,  an  intention  to  destroy  the  right.  When  all 
remedies  are  taken  away  after  a  specified  period  of  neglect  in  asserting 
rights,  and  when  this  is  done  for  promoting  the  best  interests  of  society, 
the  right  itself  is  destroyed.     Said  Judge  Swayne  in  Von  Hoffman  v. 


838      .  REVIVAL  OF   WRIT  OF  ERROR 

In  like  manner,  when  the  period  within  which  an  action 
may  be  brought  for  the  unlawful  taking  or  detention  of  goods 
or  chattels  has  gone  by,  the  right  is  extinct,  as  well  as  the 
remedy,  and  a  subsequent  repeal  of  the  statute  will  not 
enable  the  injured  party  to  recover.^  It  is  a  logical  conse- 
quence of  this  doctrine  that  as  the  general  issue  in  such  cases 
is  an  implied  denial  of  the  plaintiff's  right,  the  lapse  of  time 
may  be  relied  on  as  a  defence  without  pleading  the  statute.^ 

It  is  also  clear  that  the  right  to  a  bill  of  review  or  writ  of 
error  cannot  be  revived  after  it  has  expired  by  the  lapse  of 
time,  because  such  an  enactment  opens  a  judgment  which 
has  become  absolute,  and  remits  the  parties  to  the  position 
which  they  held  at  the  commencement  of  the  suit,  and  is 

City  of  Quincy,  4  Wall.  535,  652,  '  without  the  remedy  the  contract  may, 
in  the  sense  of  the  law,  be  said  not  to  exist.'  And  Washington,  J., 
in  Green  v.  Biddle,  8  Wheat.  1,  76,  'if  there  be  no  remedy,  the  law 
necessarily  presumes  a  want  of  right.' 

*'  Now  in  all  these  classes  of  cases  the  courts  have  decided  that  the 
rights  acquired  by  reason  of  these  statutes  of  limitation,  whether  they 
were  rights  of  property  or  simply  rights  to  defeat  suits,  and  whether  the 
suits  arose  ex  contractu  or  ex  delicto,  could  not  be  taken  away  by  the  repeal 
or  modification  of  the  law." 

In  Wright  v.  Oakley,  5  Met.  400,  410,  Chief-Justice  Shaw  intimated 
that  it  might  not  be  proper,  in  technical  strictness,  to  say  that  a  man  had 
a  vested  right  to  plead  the  statute  of  limitations  so  that  it  could  not  be 
taken  away  by  an  express  act  of  the  legislature;  but  he  declined  to  give 
such  an  effect  of  the  statute  then  before  him,  or  definitely  to  concede  any 
enactment  could  so  operate.  In  Ball  v.  Wyeth,  99  Mass.  338,  the  court 
still  expresses  "grave  doubt"  of  the  authority  of  the  legislature  to  give 
an  action  after  the  bar  of  the  statute  is  complete.  But  other  tribunals 
have  gone  farther  than  the  expression  of  doubts,  and  have  distinctly 
denied  the  existence  of  such  authority.  In  the  following  cases  it  was 
directly  adjudged  that  the  legislature  had  not  the  power:  Naught  v. 
O'Neal,  1  111.  29;  Sprecker  v.  Wakeley,  11  Wis.  432;  Parish  v.  Eager, 
15  Id.  532  ;  Baggs's  Appeal,  43  Pa.  512  ;  McKinney  v.  Springer,  8 
Blackf.  506;  Stipp  v.  Brown,  2  Ind.  647;  Davis  v.  Minor,  1  Howard 
(Miss.),  183;  Woodman  w.  Fulton,  47  Miss.  682;  Martin  v.  Martin,  35 
Ala.  560;  Girdner  v.  Stephens,  1  Heisk.  280;  Atkinson  v.  Dunlap,  50  Me. 
Ill;  Ryder  v.  Wilson's  Executors,  12  Vroom,  9. 

1  Smart  v.  Baugh,  3  J.  J.  Marsh.  364;  Jones  v.  Jones,  18  Ala.  248; 
Campbell  v.  Holt,  115  U.  S.  620,  624. 

2  See  Campbell  v.  Holt,  115  U.  S.  620,  624. 


OR   LIABILITY  TO  INDICTMENT. 


839 


not  only  a  ''  deprivation  without  process,"  but  an  assumption 
of  judicial  power.  Such  is  the  rule  in  Pennsylvania,  and  it 
has  been  so  laid  down  in  other  States.^  The  right  to  an 
appeal,  or  writ  of  error,  may  however  be  taken  away  legis- 
latively before  it  has  been  exercised,  or  even  while  the  pro- 
ceeding is  pending  and  undetermined  in  the  appellate  court.^ 

Whatever  the  rule  may  be  under  other  circumstances,  there 
is  no  doubt  that  a  man  who  has  been  exonerated  from  liability 
to  an  indictment  under  the  operation  of  a  statute  of  limi- 
tations, cannot  be  again  rendered  answerable  by  its  repeal, 
consistently  with  the  prohibition  of  ex  post  facto  laws,  and 
the  deprivation  of  life  and  liberty  without  due  process  of  law.^ 
On  the  other  hand,  so  long  as  the  period  of  limitation  is  still 
running,  either  in  criminal  or  civil  suits,  it  is  subject  to  the 
control  of  the  legislature,  and  may  be  extended  if  they  think 
proper,  although  it  is  drawing  to  a  close  and  would  expire 
in  the  course  of  another  day  but  for  their  intervention.* 

If  we  now  turn  to  the  question,  Will  the  repeal  of  the 
statute  of  limitations  revive  a  debt  which  is  already  barred  ? 
it  admits  of  but  one  reply  if  there  can  be  a  right  of  property  in 
a  defence  as  well  as  in  a  cause  of  action.  As  a  general  propo- 
sition, this  is  indisputable.  No  one  maintains  that  a  statute 
can  revive  a  debt  which  has  been  extinguished  by  a  release, 
or  Bn  accord  and  satisfaction,  or  the  cancellation  of  the  bond 
in  which  it  originated.  But  it  is  said  that  where,  as  in  the 
case  of  a  usurious  contract,  a  legislative  act  creates  the  bar, 
it  may  be  removed  by  the  same  means.  Such,  agreeably  to 
the  authorities,  is  the  rule  with  regard  to  contracts  prohibited 
b}''  law,  or  founded  on  a  gaming,  usurious,  or  other  illegal 
consideration  ;  and  in  Campbell  v.  Holt  ^  it  was  extended  to 

1  McCabe  v.  Emerson,  18  Pa.  Ill;  Baggs's  Appeal,  43  Id.  512;  Burch 
V.  Newbury,  10  N.  Y.  374;  Hill  v.  Sunderland,  3  Vt.  507.  See  State  v. 
Northern  Central  R.  R.  Co.,  18  Md.  193. 

2  Grover  v.  Coon,  1  N.  Y.  536;  Baltimore  &  Potomac  R.  R.  Co.  v. 
Grant,  98  U.  S.  398. 

»  See  ante,  p.  571 ;  Moore  v.  State,  42  N.  J.  Law  (13  Vroom),  208 ;  State 
V.  Keith,  63  N.  C.  140;  Kring  v.  Missouri,  107  U.  S.  221,  231. 

*  Commonwealth  v.  Duffy,  96  Pa.  509 ;  Pleasants  v,  Rohrer,  17  Wis.  577. 
6  115  U.  S.  620.     See  ante,  p.. 792. 


840  DEBT  BAERED  BY  STATUTE. 

debts  barred  by  the  statute  of  limitations.  The  court  held 
that  the  statute  operates  in  such  cases  on  the  remedy,  and 
not  on  the  right,  which  remains  and  may  be  a  consideration 
for  a  new  promise  ;  and  hence  if  the  law  is  repealed,  there 
is  no  .reason  why  the  creditor  should  not  have  his  due.  If  a 
man  took  or  detained  goods  or  land  which  did  not  belong  to 
him,  and  the  owner  failed  to  sue  within  the  appointed  time, 
the  wrong-doer  acquired  a  vested  right  which  was  bej^ond  the 
reach  of  retroactive  legislation. 

Debts  stood  on  a  different  footing,  because  the  lapse  of 
time  does  not  impair  the  right,  and  simply  takes  away  the 
remedy  ;  and  if  the  legislature  think  proper  to  restore  the  lat- 
ter, there  is  no  reason  why  the  creditor  should  not  have  his 
due. 

Bradley  and  Harlan,  J.  J.,  dissented  on  grounds  which  ap- 
pear unanswerable ;  and  a  consideration  of  the  subject  will,  I 
think,  show  that  there  is  no  such  analogy  as  the  majority  of 
the  court  supposed  between  a  plea  of  usury  and  a  plea  that 
the  cause  of  action  did  not  accrue  within  six  years.  The 
statute  of  limitations  proceeds  on  the  assumption  that  after 
six  years  have  gone  by  it  may  be  impracticable  to  determine 
which  party  has  the  right,  and  therefore  leaves  it  to  the  de- 
fendant to  say  whether  the  debt  is  really  due.  If  he  makes  a 
new  promise  or  admits  the  justice  of  the  demand  in  any  otlier 
way,  and  the  case  is  made  out  in  other  particulars,  there  can 
be  no  doubt  of  the  creditor's  right  to  judgment.  The  power 
so  conferred  on  the  debtor  of  acting  as  a  judge  in  his  own 
case  is  a  valuable  privilege,  which  cannot  be  taken  away  after 
it  has  become  absolute  through  the  lapse  of  time,  without  the 
deprivation  which  the  Constitution  forbids.  It  is  because  the 
operation  of  the  statute  is  under  the  defendant's  control,  and 
he  may  decide  whether  the  debt  shall  be  paid,  that  the  de- 
fence should  be  considered  as  his  property',  and  cannot  be 
repealed  by  the  legislature.  When,  on  the  other  hand,  the 
suit  is  founded  on  an  act  or  agreement  forbidden  by  law,  the 
legislature  may  render  the  contract  binding  retroactively,  be- 
cause the  prohibition  is  imposed  for  the  public  good,  and  it  is 
for  the  State  to  say  whether  it  can  safely  be  laid  aside. 


DEFENCE  GIVEN  FOR  THE  PUBLIC  GOOD.  841 

There  is  another  consideration  which  should  not  be  over- 
looked. Men  generally  suppose  that  when  six  years  have 
elapsed  since  work  was  done  or  a  service  rendered,  it  no 
longer  subsists  as  a  cause  of  action,  and  destroy  or  neglect  to 
preserve  the  evidence  which  shows  that  nothing  was  due  or 
that  the  debt  was  paid.  A  repeal  of  the  statute  consequently 
leaves  them  open  to  demands  which  could  easily  have  been 
resisted  had  they  not  relied  on  the  assurance  which  it  held 
forth,  and  is  in  effect  a  breach  of  public  faith. 

The  power  of  the  legislature  to  reinstate  a  remedy  which 
they  have  abrogated,  like  the  question.  Can  a  statutory  defence 
be  waived  by  the  party  whom  it  is  sought  to  charge  ?  seem- 
ingly depends  on  whether  the  object  of  the  disabling  statute 
is  the  prevention  of  acts  which  are  injurious  to  the  com- 
munity, or  to  afford  a  safeguard  to  individuals  if  they  so 
desire.  In  the  former  case  the  defendant  cannot  give  vali- 
ditj^  to  that  which  the  statute  on  public  grounds  condemns  ; 
in  the  latter  he  may  bind  himself  anew  by  a  promise.^  A 
defence  on  the  ground  of  illegality  —  that  the  consideration 
is  usurious,  or  a  gambling  debt  —  falls  under  the  first-named 
head-;  a  certificate  of  bankruptcy,  or  the  bar  of  the  statute  of 
limitations,  under  the  second.  A  promise  to  pay  a  usurious 
debt  is  as  invalid  as  was  the  original  contract,  because  both 
are  equally  contrary  to  the  policy  of  the  law ;  but  there  is 
no  such  objection  to  a  promise  to  fulfil  a  contract  which  is 
invalidated  by  fraud  or  a  discharge  in  bankruptc3\  Con- 
versely, the  legislature  may  well  confirm  the  contract  in  the 
former  instance  if  they  deem  the  disability  no  longer  essential 
to  the  general  welfare ;  but  they  should  have  no  such  power 
in  the  latter  where  the  privilege  concerns  the  individual,  and 
not  the  community  at  large.  It  is  accordingly  established  in 
Pennsylvania  and  Massachusetts,  and  generally  in  the  United 
States,  that  the  inability  to  enforce  an  illegal  contract  or  one 
founded  on  an  act  forbidden  by  law,  is  a  penalty  which  may 

1  See  Hare  on  Contracts,  285,  291,  296;  Haydock  v.  Tracy,  3  W.  & 
S.  507;  Foreman  v.  Ahl,'55  Pa.  325;  Day  v.  McAllister,  15  Gray,  433; 
Brock  V.  Hook,  L.  R.  6  Exch.  89;  McIIugh  v.  Schuylkill  Co.,  67  Ta.  391; 
Shisler  v.  Vandike,  92  Id.  447. 


842  DEFENCE    GIVEN   TO   PROTECT 

incidentally  benefit  the  debtor,  but  is  not  imposed  with  that 
design,  and  may  therefore  be  repealed  without  prejudice  to 
any  right  which  he  is  entitled  to  assert.^  On  the  other  hand, 
the  weight  of  authority  is  not  less  clearly  that  when  the  bar 
of  a  statute  becomes  complete  through  the  lapse  of  time,  it 
is  beyond  the  reach  of  the  legislature,  because  the  effect  of 
abrogating  it  is  to  compel  the  defendant  to  render  that 
which,  as  the  law  previously  stood,  he  would  have  been 
entitled  to  retain.^ 

1  See  ante,  p.  742;  Hewitt  y.  Wilcox,  11  Metcalf,  154;  Hampton  v.  The 
Commonwealth,  19  Pa.  329;  Baugher  v.  Nelson,  9  Gill,  304;  Butler  v. 
Palmer,  1  Hill,  324;  Curtis  v.  Leavitt,  15  N.  Y.  9;  Bank  v.  Allen,  28 
Conn.  97;  Welch  v.  Wadsworth,  30  Id.  149;  Grimes  v.  Doe,  8  Blackford, 
371;  Wood  v.  Kennedy,  19  Ind.  68;  Danville  v.  Pace,  25  Ga.  117;  Par- 
melee  V.  Lawrence,  48  111.  331;  Ewell  v.  Daggs,  108  U.  S.  143;  State  v. 
Norwood,  12  Md.  195;  Lewis  v.  McElvain,  16  Ohio,  347;  Thompson  v. 
Morgan,  6  Minn.  292. 

2  See  Ryder  v.  Wilson,  12  Vroom,  41  N.  J.  Law,  9,  11;  Moore  v.  The 
State,  42  Id.  208;  Davis  v.  Minor,  1  Howard  (Mass.),  183;  Bigelow  v. 
Bemis,  2  Allen,  496;  Wright  v.  Oakley,  5  Metcalf,  400;  Krisman  v.  Cam- 
bridge, 121  Mass.  558;  McKinny  v.  Springer,  8  Blackford,  506;  Sprecker 
V.  Wakeley,  11  AVis.  432;  Parish  v.  Eager,  15  Id.  532;  Woodman  v.  Ful- 
ton, 47  Miss.  682;  Martin  v.  Martin,  35  Ala.  560;  Atkinson  v,  Dunlap, 
50  Me.  117;  Woart  v.  Winnick,  3  N.  H.  473. 

The  subject  cannot  well  be  put  in  a  clearer  light  than  in  the  follow- 
ing extract  from  the  dissenting  opinion  of  Mr.  eJustice  Bradley  in  Campbell 
V.  Holt,  115  U.  S.  620,  630:  — 

"  I  think  that  when  the  statute  of  limitations  gives  a  man  a  defence  to 
an  action,  and  that  defence  has  absolutely  accrued,  he  has  a  right  which 
is  protected  by  the  Fourteenth  Amendment,  which  declares  that  '  no 
State  shall  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law,'  was  intended  to  protect  every  valuable  right  which  a 
man  has.  The  words  *  life,  liberty,  and  property  *  are  constitutional  terms, 
and  are  to  be  taken  in  their  broadest  sense.  They  indicate  the  three 
great  subdivisions  of  all  civil  right.  The  term  '  property  '  in  this  clause, 
embraces  all  valuable  interests  which  a  man  may  possess  outside  of  himself ; 
that  is  to  say,  outside  of  his  life  and  liberty.  It  is  not  confined  to  mere 
tangible  property,  but  extends  to  every  species  of  vested  right.  In  my 
judgment,  it  would  be  a  very  narrow  and  technical  construction  to  hold 
otherwise.  In  an  advanced  civilization  like  ours,  a  very  large  proportion 
of  the  property  of  individuals  is  not  visible  and  tangible,  but  consists  in 
rights  and  claims  against  others  or  against  the  government  itself. 

"Now,  an  exemption  from  a  demand  or  an  immunity  from  prosecution 


THE  INDIVIDUAL.  843 

in  a  suit  is  as  valuable  to  the  one  party  as  the  right  to  the  demand  or  to 
prosecute  the  suit  is  to  the  other  :  the  two  things  are  correlative ;  and  to 
say  that  the  one  is  protected  by  constitutional  guaranties,  and  that  the 
other  is  not.  seems  to  me  almost  an  absurdity.  One  right  is  as  valuable 
as  the  other.  My  property  is  as  much  imperilled  by  an  action  against 
me  for  money  as  it  is  by  an  action  for  my  land  or  my  goods.  It  may 
involve  and  sweep  away  all  that  I  have  in  the  world.  Is  not  a  right 
of  defence  to  such  an  action  of  the  greatest  value  to  me?  If  it  is 
not  property  in  the  sense  of  the  Constitution,  then  we  need  another 
amendment  to  that  instrument.  But  it  seems  to  me  that  there  can  hardly 
be  a  doubt  that  it  is  property.  The  immunity  from  suit  which  arises  by 
operation  of  the  statute  of  limitations  is  as  valuable  a  right  as  the  right  to 
bring  the  suit  itself;  it  is  a  right  founded  on  a  wise  and  just  policy. 
Statutes  of  limitation  are  not  only  calculated  for  the  repose  and  peace  of 
society,  but  to  provide  against  the  evils  that  arise  from  loss  of  evidence 
and  the  failing  memory  of  witnesses. 

"  The  fact  that  this  defence  pertains  to  the  remedy  does  not  alter  the 
case.  Remedies  are  the  life  of  rights,  and  are  equally  protected  by  the 
Constitution.  Deprivation  of  a  remedy  is  equivalent  to  a  deprivation  of 
the  right  which  it  is  intended  to  vindicate,  unless  another  remedy  exists 
or  is  substituted  for  that  w^hich  is  taken  away.  This  court  has  frequently 
held  that  to  deprive  a  man  of  remedy  for  enforcing  a  contract  is  itself  a 
mode  of  impairing  the  validity  of  the  contract.  And,  as  before  said,  the 
right  of  defence  is  just  as  valuable  as  the  right  of  action.  It  is  the  de- 
fendant's remedy.  There  is  really  no  difference  between  the  one  right 
and  the  other  in  this  respect. 

♦*  It  is  said  that  the  statutory  defence  acquired  and  perfected  in  one 
State  or  country  is  not,  or  may  not  be,  a  good  defence  in  another.  This, 
if  it  were  true,  proves  nothing  to  the  purpose.  It  is  a  vested  right  in 
the  place  where  it  has  accrued,  and  is  an  absolute  bar  to  the  action  there. 
This  is  a  valuable  right,  although  it  may  be  ineffective  elsewhere. 
Again,  it  is  said  that  a  debt  barred  by  the  statute  is  a  good  considera- 
tion for  a  promise  to  pay  it,  —  which  shows  that  the  statute  does  not 
extinguish  the  debt.  This  is  no  answer  to  the  position  that  the  statutory- 
defence  is  a  valuable  and  an  absolute  right.  A  new  promise  is  an  im- 
plied admission  that  the  debt  has  not  been  paid,  and  amounts  to  a 
voluntary  waiver  of  the  statute." 


VOL.    II.  — 13 


LECTURE  XXXVIII. 

The  Fifth  and  Fourteenth  Amendments  forbid  the  Deprivation  of  Life, 
Liberty,  or  Property  without  Notice  or  a  Hearing  by  some  duly  con- 
stituted TribunaL  —  The  Legislature  cannot  adjudicate  or  retroac- 
tively declare  the  Meaning  of  a  Statute.  —  The  Law  of  the  Land  is 
the  Rule  existing  when  the  Right  in  Question  was  acquired,  as  inter- 
preted and  applied  by  the  Courts.  —  Acts  ordering  a  Re-hearing  or 
New  Trial  are  Invalid.  —  The  Want  of  Jurisdiction  cannot  be  cured 
retroactively  by  a  Statute.  —  Either  Branch  of  Congress  may  make 
Rules  for  the  Preservation  of  Order  and  punish  a  Violation  of  them  as 
Contempt.  —  The  House  of  Representatives  or  Senate  cannot  compel 
the  Production  of  Papers  or  the  Attendance  of  Witnesses  in  Civil 
Cases,  although  the  Interests  of  the  United  States  are  involved.  — 
Their  Power  in  this  Regard  in  the  Preparation  and  Trial  of  an  Im- 
peachment, or  the  Investigation  of  Charges  which  may  lead  to  the 
Expulsion  of  a  Member. 

The  Constitutional  provision  that  no  person  shall  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law, 
or,  in  other  words,  without  a  day  in  court  and  opportunity 
for  being  heard,  obviously  requires  that  questions  of  right 
shall  be  determined  by  the  judicial  department  of  the  govern- 
ment ;  and  hence  a  statute  declaring  the  land  or  goods  in 
suit  are  the  plaintiffs,  or  that  a  deed  to  him  from  the  defend- 
ant is  valid,  will  be  equally  inoperative  whether  it  is  or  is 
not  in  conformity  with  the  truth,  which  will  remain  open  for 
decision  as  though  no  such  legislation  had  intervened.^ 

The  legislature  may  provide  retroactively  that  conveyances 
of  a  certain  kind  shall  be  good,  notwithstanding  technical  or 
clerical  errors  or  defects,  but  they  cannot  declare  that  a  partic- 
ular conveyance  is  valid,  or  enforce  it  against  the  grantor.^ 

1  The  Mayor  v.  Scott,  1  Pa.  309;  Lambertson  v.  Hogan,  2  Id.  22, 
25 ;  Davidson  v.  New  Orleans,  98  U.  S.  97,  102. 

2  Norman  v.  Heist,  5  W.  &  S.  171;  Taylor  v.  Porter,  4  Hill,  146; 
Westervelt  v.  Gregg,  12  N.  Y.  209 ;  Wynehamer  v.  The  People,  13  Id. 


I 


DUE  PROCESS   OP  LAW.  845 

The  words  "due  process  of  law"  cannot  mean  less  than  a 
prosecution  or  suit  instituted  and  conducted  according  to  the 
customary  forms  and  solemnities  for  ascertaining  guilt  or 
determining  the  title  to  property.  Life,  liberty,  and  property 
are  classed  in  the  same  category,  and  the  same  measure  of 
protection  is  extended  to  each ;  and  if  property  can  be  divested 
without  a  trial  and  judgment,  there  is  no  security  for  life  or 
liberty.  If  the  legislature  may  take  the  property  of  A  and 
bestow  it  on  B,  they  may  take  A  himself  and  imprison  him 
or  put  him  to  death.^  The  law  of  the  land  is  the  rule  exist- 
ing when  the  right  in  question  was  acquired,  as  interpreted 
and  applied  by  the  courts.^ 

It  must  be  ascertained  judicially  that  the  citizen  has  com- 
mitted some  offence  which  renders  him  amenable  to  the  crim- 
inal law,  or  that  some  one  has  a  better  title  than  himself, 
before  he  can  be  deprived  of  what  he  holds  or  owns,  or  so 
hindered  in  the  exercise  of  his  natural  rights  as  to  abridge 
his  freedom.  Such  a  conclusion  may  be  drawn  from  the 
tenor  of  the  Constitutions  of  the  several  States  and  the  genius 
of  a  system  which  has  for  its  object  the  maintenance  of  indi- 
vidual rights  as  well  as  to  render  the  people  as  a  whole  politi- 
cally free,  and  is  a  necessary  inference  from  the  clause  under 
consideration  in  this  lecture.^ 

In  Norman  v.  Heist,*  Ann  Ottinger  died  leaving  two 
brothers,  to  whom  her  estate  came  under  the  existing  law, 
and  a  natural  son,  Christopher  Norman,  who  was  not  capable 
of  inheriting  from  either  parent.  He  died,  and  the  legislature 
enacted  that  his  children  should  be  as  able  and  capable  to 

395,  419,  468;  Norris  v.  Beyea,  Id.  273,  288;  Rockwell  v.  Nearing,  35  Id. 
302. 

1  Palairet's  Appeal,  67  Pa.  479,  485;  Westervelt  v.  Gregg,  12  N.  Y. 
209. 

«  Wynehamer  v.  The  People,  13  N.  Y.  378,  393;  Hake  v.  Henderson, 
4  Devereux,  15. 

8  Calder  v.  Bull,  3  Dallas,  386;  Regents  v.  Johnson,  9  Gill  &  J.  365; 
Wilkinson  v.  Leland,  2  Peters,  657;  Welch  v.  Wadsworth,  30  Conn.  149, 
155;  Burch  r.  Newbury,  10  N.  Y.  374;  Lambertson  v.  Hogan,  2  Pa.  22, 
25. 

*  5  W.  &  S.  171. 


846  THE  LEGISLATURE  CANNOT 

inherit  and  transmit  the  estate  of  the  said  Ann  Ottinger  as 
though  he  had  been  born  in  lawful  wedlock.  The  decision 
was  that  if  the  statute  divested  the  estate  which  had  de- 
scended to  Ann  Ottinger's  brothers  at  her  death,  it  was  a 
deprivation  without  "  due  process,"  but  that  it  should  be 
interpreted  as  meant  to  give  Christopher  Norman  the  inherit- 
able blood  which  the  common  law  denies  to  persons  whose 
parents  are  not  married,  and  enable  his  children  to  take  what- 
ever property  might  subsequently  descend  to  them  through 
him  on  the  mother's  side. 

Such  statutes,  it  was  observed,  must  be  read  in  the  light  of 
the  constitutional  provision  "  that  no  citizen  shall  be  deprived 
of  life,  liberty,  or  property,  unless  by  the  judgment  of  his 
peers  or  the  law  of  the  land."  "  What  law?  Undoubtedly 
a  pre-existent  rule  of  conduct  declarative  of  a  penalty  for  a 
prohibited  act,  not  an  ex  post  facto  sentence  or  decree  made 
for  the  occasion.  The  design  is  to  exclude  arbitrary  power 
from  every  branch  of  the  government ;  and  there  would  be 
no  exclusion  of  it  if  such  rescripts  were  allowed  to  take  effect 
in  the  form  of  a  statute."  ^ 

As  the  legislative  department  cannot  determine  which  of 
two  contending  parties  has  the  right,  so-  they  cannot  accom- 
plish the  same  result  by  declaring  the  meaning  of  a  pre-exist- 
ing law  contrary  to  the  interpretation  which  it  has  received 
from  the  judiciary.  The  legislature  enacts,  the  courts  con- 
strue ;  and  as  the  one  cannot  say  what  the  law  shall  be,  the 
other  cannot  declare  what  it  is.^ 

In  Greenough  v.  Greenough,^  the  Supreme  Court  of  Penn- 
sylvania had  decided  that  a  mark  was  not  a  signature  within 
the  Pennsylvania  Statute  of  Wills,  and  the  legislature  sub- 
sequently enacted  "  that  every  will  and  testament  heretofore 
made  or  hereafter  to  be  made  ...  to  which  the  testator  hath 

1  Darmouth  College  v.  Woodward,  4  Wheaton,  519;  Hoke  v.  Hender- 
son, 4  Div.  151;  Norman  v.  Heist,  5  W.  &  S.  171,  173. 

2  Larabertson  v.  Hogan,  2  Pa  22;  Reiser  v.  The  Savings  Fund,  39 
Id.  137,  145;  Haley  u.  Philadelphia,  68  Id.  45;  West  Branch  Boom  Co. 
V.  Dodge,  31  Id.  285. 

8  11  Pa.  489. 


I 


ACT  JUDICIALLY.  847 

made  his  mark  or  cross,  shall  be  deemed  and  taken  to  be 
valid ; "  and  it  was  held  that  so  far  as  this  statute  attempted 
to  define  the  effect  of  the  pre-existing  law  on  the  estates  of 
persons  who  had  died  before  its  passage,  it  was  a  usurpation 
of  the  judicial  province,  and  as  such  unconstitutional,  and 
equally  so  if  regarded  as  an  arbitrary  deprivation  of  a  vested 
right.  "The  legislative,  executive,  and  judicial  functions 
might,  if  the  people  so  willed,  be  performed  by  a  single  organ, 
but  the  people  of  Pennsylvania  had  not  so  willed."  They 
had  ordered  that  the  judicial  power  should  be  vested  in  the 
existing  courts  and  in  such  other  courts  as  the  legislature 
might  from  time  to  time  establish.  The  judicial  power  of 
the  Commonwealth  was  its  whole  judicial  power,  and  the 
legislature  could  not  exercise  any  part  of  it.  What  the  stat- 
ute under  consideration  attempted  to  do  was  to  establish  that 
the  mark  which  the  court  had  declared  not  to  be  the  signa- 
ture required  by  the  act  of  1883,  was  such  a  signature.  A 
mandate  that  a  statute  should  be  interpreted  in  a  particular 
way  relative  to  a  past  act,  was  clearly  an  exercise  of  judicial 
power. 

The  doctrine  of  Bender  v.  Brownfield,^  that  the  legislature 
may  order  a  rehearing  in  a  case  which  has  been  already  con- 
sidered and  adjudged,  or  that  a  judgment  which  has  been 
entered  by  confession  shall  be  opened  and  the  case  sent  to  a 
jury,  is  virtually  overruled  by  this  decision  and  by  the  judg- 
ment in  McCabe  v.  Emerson.^ 

It  is  established,  in  accordance  with  these  authorities,  that 
as  the  legislature  cannot  enter  judgment  or  decide  an  issue  of 
fact,  so  they  cannot  direct  that  a  verdict  or  judgment  shall  be 
set  aside  and  the  case  reconsidered.^     "  If  anything  is  self- 

1  2  W.  &  S.  280. 

2  18  Pa.  112,  and  Baggs's  Appeal,  43  Id.  512. 

8  Morrell  v.  Sherburne,  1  N.  H.  199;  Taylor  v.  Place,  4  R.  I.  324;  Miller 
V.  The  State,  8  Gill,  145;  De  Chastellux  v.  Fairchild,  15  Pa.  18. 

In  Louisiana  y.  New  Orleans,  109  U.  S.  285,  the  Supreme  Court  of 
the  United  States  held  .that  a  judgment  of  damages  for  a  tort  may  be 
indirectly  impaired  by  abrogating  the  means  through  which  it  can  be  en- 
forced, without  violating  any  constitutional  provision ;  but  it  would  seem 
clear  that  taking  away  the  remedy  for  a  chose  in  action  is  as  contrary  to 


848  WANT  OF  JURISDICTION  CANNOT 

evident  in  the  structure  of  our  government,  it  is  that  the 
legislature  has  no  power  to  order  a  new  trial  or  to  direct  the 
court  to  order  it,  either  before  or  after  judgment.  The  power 
to  order  new  trials  is  judicial,  but  the  power  of  the  legisla- 
ture is  not  judicial.  .  .  .  The  legislature  has  gone  no  farther 
than  to  order  a  re-hearing  on  the  merits ;  but  it  is  not  more 
intolerable  in  principle  to  pronounce  an  arbitrary  judgment 
against  a  suitor  than  it  is  injurious  in  practice  to  deprive  him 
of  a  judgment  which  is  essentially  his  property,  and  subject 
him  to  the  risk,  expense,  and  vexation  of  another  contest." 
An  interference  on  their  part  or  on  that  of  the  executive  with 
the  administration  of  justice  is  contrary  to  the  spirit  and 
forbidden  by  the  letter  of  the  Constitution,  and  not  less  objec- 
tionable now  than  when  James  I.  endeavored  to  influence  and 
overawe  Lord  Coke.^ 

In  like  manner,  a  judgment  which  fails  for  want  of  jurisdic- 
tion cannot  be  rendered  valid  subsequently  by  a  statute,  be- 
cause such  an  enactment  substitutes  the  legislature  for  the 
courts,  contrary  to  the  due  course  of  law  required  by  Magna 
Charta  and  the  Bill  of  Rights.^  Accordingly,  when  the  name 
of  one  of  several  heirs  did  not  appear  in  the  proceedings  for 
the  partition  of  the  ancestor's  estate,  the  court  held  that  the 
decree  was  invalid  as  to  the  party  so  omitted,  and  that  an 
act  of  assembly  passed  to  obviate  the  defect  was  unconsti- 
tutional.^ The  principle  was  recognized  in  Nelson  v.  Lane,* 
though  the  case  was  held  not  to  be  within  its  scope.  Agree- 
ably to  the  view  taken  in  this  instance,  where  the  orphans' 
court  of  a  county  has  jurisdiction  of  the  accounts  of  an  ad- 

the  Fifth  and  Fourteenth  Amendments  as  the  actual  taking  of  a  chose  in 
possession  (see  the  dissenting  opinion  of  Mr.  Justice  Bradly,  and  De  Chas- 
tellux  V.  Fairchild,  15  Pa.  18).  A  recovery  of  damages  in  trover  is  the 
substitute  given  by  the  law  for  the  thing  of  which  the  owner  has  been 
deprived;  and  in  denying  the  power  to  carry  the  judgment  into  execution, 
the  legislature  become  the  accomplice  of  the  wrongdoer  and  render  the 
spoliation  irremediable. 

1  See  12  Coke,  63 ;  also  ante,  p.  164. 

2  Prior  V.  Downey,  50  Cal.  388 ;  Demy  v.  Matoon,  2  Allen,  361. 
8  Richards  v.  Rote,  68  Pa.  248. 

*  79  Pa.  407. 


BE  CURED  RETROACTIVELY.  849 

ministrator,  it  may  direct  that  the  real  estate  of  the  intestate 
in  another  county  shall  be  sold,  and  the  proceeds  applied  to 
the  discharge  of  his  liabilities  ;  and  although  the  proper 
course  is  to  apply  to  the  orphans'  court  of  the  county  where 
the  land  is  situated,  and  ask  it  to  execute  the  decree,  still,  if 
the  administrator  proceeds  without  such  aid,  the  omission  is 
merely  formal,  and  the  sale  may  be  confirmed  by  a  retroactive 
statute.  Lands  are  chattels  in  Pennsylvania  for  the  payment 
of  debts ;  and  when  it  has  been  judicially  ascertained  by  the 
proper  tribunal  that  the  personal  estate  is  insufficient  and 
that  the  land  must  be  sold,  the  power  of  the  administrator  is 
enlarged,  and  there  is  no  substantial  reason  why  he  should 
not  dispose  of  any  land  within  the  State.  Despite  this  argu- 
ment, Nelson  v.  Lane  jars  with  Richards  v.  Rote,  and  may 
appear  to  some  minds  irreconcilable  with  Dale  v,  Medcalf,^ 
and  Menges  v.  Dentler.^  Such  a  sale  passes  the  title,  or 
it  does  not :  if  it  does,  the  intervention  of  the  legislature  is 
superfluous ;  if  it  does  not,  the  effect  is  to  supply  the  want 
of  judicial  power  by  a  legislative  decree.  There  is,  never- 
theless, this  difference,  —  that  in  Richards  v.  Rote  there  was 
an  entire  want  of  jurisdiction,  arising  from  an  omission  to 
give  the  notice  which  is  essential  to  the  due  course  of  law ; 
while  in  Nelson  v.  Lane  all  the  parties  were  before  the  court 
and  actually  or  constructively  bound  by  its  decree,  and  the 
only  question  was  whether  the  decree  had  been  properly 
executed. 

The  phrase  "  due  process  of  law  "  implies,  as  I  have  already 
shown,  not  only  that  the  proceeding  shall  be  such  in  form 
and  substance  as  the  established  principles  of  the  common 
law  require,  but  that  the  tribunal  before  which  it  takes  place 
shall  be  judicial,  or,  in  other  words,  constituted  for  the  ad- 
ministration of  justice  in  the  particular  case  as  well  as  in 
others  of  a  like  kind,  and  also  that  the  case  shall  be 
within  the  scope  of  the  powers  intrusted  to  the  persons  by 
whom  it  is  adjudged  ;  and  if  any  of  these  requisites  are 
wanting,  the  dignity  of  the  officials  by  whom  the  sentence  is 
pronounced,  and  the  solemnity  of  their  office,  will  not  render 

1  9  Pa.  108.  a  33  Pa.  495. 


850  JUDICIAL  POWERS  OF  CONGEESS. 

it   obligatory,  or   exonerate  the  officers  who   carry  it  into 
execution  from  liability  as  trespassers.^ 

The  principle  applies  in  England  to  the  House  of  Com- 
mons and  the  great  courts  at  Westminster,^  and  is  true  in 
the  United  States  of  every  body  which  assumes  to  exercise 
judicial  power  in  a  given  case  without  being  duly  authorized 
for  that  end.  Agreeably  to  our  system,  the  executive,  legis- 
lative, and  judicial  powers  are,  as  we  have  seen,  distributed 
among  the  several  branches  of  the  government,  with  the 
view  of  keeping  each  to  its  appropriate  sphere,  and  Con- 
gress can  no  more  adjudicate  than  judges  can  enact.  It  is 
accordingly  conceded  that  the  Senate  and  House  of  Repre- 
sentatives have  no  power  severally  or  conjointly  to  sit  for  the 
punishment  of  ofPences  against  the  criminal  law,  or  to  de- 
termine private  rights ;  and  such  a  proceeding  is  simply  void. 
There  are  nevertheless  certain  purposes  for  which  either 
body  may  act  judicially ;  as,  for  instance,  the  decision  of 
contested  elections,  the  expulsion  of  members  for  bribery  or 
other  gross  misconduct,  the  preparation  and  trial  of  impeach- 
ments, and  the  repression  of  offences  against  the  order  and 
discipline  which  are  as  essential  to  the  due  consideration  and 
passage  of  a  bill  as  to  the  rendition  of  a  verdict  or  judgment. 
The  Constitution  accordingly  provides  that  "each  House  shall 
be  the  judge  of  the  election  returns  and  qualitication  of  its 
own  members,"  "may  determine  the  rule  of  its  proceedings, 
punish  its  members  for  disorderly  behavior,  and,  with  the  con- 
currence of  two  thirds,  expel  a  member."  "  The  President, 
Vice-President,  and  all  civil  officers  of  the  United  States  shall 
be  removed  from  office  on  impeachment  for  and  conviction 
of  treason,  bribery,  or  other  high  crimes  and  misdemeanors." 
"  The  House  of  Representatives  shall  have  the  sole  power  to 
impeach,"  and  the  Senate  "to  try  all  impeachments."  "  When 
sitting  for  that  purpose  they  shall  be  on  oath  or  affirmation." 
These  are  important  and  far-reaching  powers,  which  cannot 

1  The  Case  of  the  Marshalsea,  10  Coke,  68,  76;  Williamson's  Case,  26 
Pa.  9,  18;  Gilliland  v.  Sellers,  2  Ohio  St.  223;  1  Smith's  Lead.  Cas. 
(8th  Am.  ed.)  1111. 

2  See  ante^  p.  29. 


POWER  TO  PUKISH  CONTEMPT. 


851 


be  effectually  exercised  without  the  compulsory  attendance 
of  witnesses,  the  production  of  papers,  and  the  maintenance 
of  order,  —  in  short,  all  that  is  essential  to  the  discharge  of 
the  judicial  function,  including  the  arrest,  conviction,  and 
imprisonment  of  persons  who  disturb  the  proceedings  or  dis- 
obey any  lawful  command  while  they  are  going  on. 

Although  these  last-named  powers  are  not  expressly  given, 
they  are  a  necessary  means  for  the  execution  of  the  express 
powers,  without  which  either  House  might  be  harassed  by 
a  series  of  premeditated  insults  that  could  not  be  effect- 
ually punished  in  the  ordinary  course  of  justice,  and  com- 
pelled  to  exclude  the  public  or  tolerate  indignities  which 
would  lower  them  in  the  eyes  of  the  nation  and  hinder  the 
deliberate  and  orderly  consideration  of  the  questions  under 
debate.  So  much  was  decided  in  Dunn  v.  Anderson,^  where 
the  court  also  held  that  the  House  of  Representatives  is,  like 
the  House  of  Commons,  entitled  to  the  benefit  of  the  pre- 
sumption, which  shields  courts  of  justice,  that  all  has  been 
rightly  done  unless  the  contrary  appears.^  A  magistrate's 
warrant  must  set  forth  some  sufficient  cause  ;  but  this  rule 
does  not  apply  to  the  writs  of  superior  courts,  or  of  either 
branch  of  Parliament.^  Such  was  the  view  taken  at  the  out- 
set of  the  government,  and  prevailing  until  recently.  In  the 
language  of  Chief- Justice  Shippen,  as  cited  by  Story,  "  the 
members  of  the  legislature  are  legally  and  inherently  pos- 
sessed of  all  such  privileges  as  are  necessary  to  enable  them 
to  execute  the  great  trust  reposed  in  them  by  the  people. 
Assaults  on  members,  attempts  to  corrupt  them,  sending 
challenges  to  members,  and  libellous  publications  reflecting 
on  the  Senate  have  been  treated  as  contempt,  and  visited  it 
some  instances  with  imprisonment,  in  others  with  a  repri- 
mand on  submission  made."* 

When,  however,  the  question  came  before  the  Supreme 

1  6  Wheaton,  204- 

2  1  Smith's  Lead.  Cas.  (8th  Am.  ed.)  111. 

8  Gossett  V.  Howard,  10  Q.  B.  359,  452;  1  Smith's  Lead.  Cas.  (8tl. 
Am.  ed.)  1111. 

*  Story  on  the  Constitution,  section  848. 


852  POWER  TO   COMPEL  THE 

Court  of  the  United  States  for  the  second  time  in  the  case  of 
Kilbourn  v,  Thompson,^  that  tribunal  took  a  different  view, 
which  limits  the  jurisdiction  of  both  branches  of  the  national 
legislature,  except  as  regards  the  institution  and  trial  of  an 
impeachment.  The  action  was  trespass  for  false  imprisonment 
against  the  sergeant-at-arms  and  five  members  of  the  House 
of  Representatives,  and  the  defendants  relied  on  a  special 
plea  setting  forth  the  following  facts  and  circumstances :  That 
the  House  of  Representatives  had  adopted  a  resolution  de- 
claring that  the  firm  of  Jay  Cooke  &  Co.  were  indebted  to 
the  government  of  the  United  States  and  had  a  large  and 
valuable  interest  in  the  matter  known  as  the  Real  Estate 
Pool,  which  had  been  settled  by  tiie  assignee  of  the  firm 
to  the  disadvantage  of  their  numerous  creditors,  including 
the  United  States,  and  ordering  the  appointment  of  a  spe- 
cial committee  of  five  members  to  inquire  into  the  transac- 
tion, with  power  to  send  for  persons  and  papers ;  that  the 
committee  was  appointed  and  commenced  the  investigation ; 
that  the  plaintiff  was  served  with  a  subpoena  duces  tecurriy 
issued  by  the  Speaker  of  the  House,  requiring  him  to  appear 
before  the  committee  and  bring  with  him  certain  papers, 
which  he  knowingly  and  wilfully  refused  to  produce ;  that 
the  House  then  resolved,  in  pursuance  of  the  report  of  the 
committee,  that  the  Speaker  should  issue  his  warrant  to  the 
sergeant-at-arms  for  the  arrest  of  the  plaintiff  and  to  bring 
him  before  the  House,  which  was  done ;  that  the  plaintiff 
still  contumaciously  persisted  in  his  refusal  to  bring  the 
papers ;  and  that  the  House  then  resolved  that  he  was  guilty 
of  contempt,  and  should  be  held  in  custody  until  he  was  ready 
to  make  answer  and  obey  the  subpoena.  It  was  strenuously 
contended  that  the  plea  was  good  in  view  of  the  principles 
governing  the  jurisdiction  of  the  House  of  Commons,  which 
had  been  recognized  in  Anderson  v,  Dunn  as  applicable  to 
Congress. 

The  court  held  that  the  supposed  analogy  to  the  House  of 
Commons  was  fallacious.      The   authority  of  that  body  to 
commit  and  sentence  to  imprisonment  without  cause  assigned 
1  103  U.  S.  168. 


ATTENDANCE  OF  WITNESSES. 


853 


was  a  relic  from  the  period  when  the  knights  and  burgesses 
sat  with  the  barons  in  the  great  council  of  the  realm,  which 
descended  to  and  was  still  exercised  by  the  Lords  as  a  court 
of  appeal  and  in  the  trial  of  impeachments.  The  Commons 
might  act  judicially  in  passing  a  bill  of  attainder,  and  had 
traditionally  and  from  long-established  usage  the  powers  of 
a  court  of  general  jurisdiction  in  issuing  process  and  for 
the  punishment  of  contempts.  The  manifest  purpose  of  the 
American  Constitution  was  to  keep  the  executive,  legislative, 
and  judicial  branches  of  the  government  asunder,  and  that  no 
one  of  them  should  encroach  upon  the  province  of  the  other. 
The  House  of  Representatives  had  no  jurisdiction  over  the 
private  affairs  of  individuals,  and  could  not  proceed  judicially 
save  with  a  view  to  an  impeachment,  or  for  the  trial  of  con- 
tested elections  and  the  maintenance  of  the  order  and  disci- 
pline requisite  for  the  performance  of  its  functions.  The 
Houses  of  Congress  possessed  no  general  power  to  punish  for 
contempt,  and  they  could  not,  by  the  mere  act  of  asserting  a 
person  to  be  guilty  of  contempt,  establish  the  right  to  fine  and 
imprison,  or  preclude  redress  through  a  collateral  inquiry  into 
the  grounds  on  which  the  order  was  made.  The  tendency  of 
the  modern  decisions  is  that  the  jurisdiction  of  a  tribunal  to 
render  a  judgment  affecting  individual  rights  is  open  to  in- 
quiry when  the  judgment  is  relied  on  in  any  other  proceed- 
ing. In  the  case  under  consideration  it  appeared  on  the  face 
of  the  plea  filed  by  the  defendants  that  the  House  of  Repre- 
sentatives had  exceeded  their  powers,  and  so  much  of  the 
defence  as  rested  on  this  ground  consequently  failed. 

Whether  a  recovery  could  be  had  against  the  members  of 
the  House  of  Representatives  who  were  joined  as  defendants, 
depended  on  the  sixth  section  of  the  First  Article  of  the  Con- 
stitution. The  plea  admitted  that  they  had  reported  the 
plaintiff  to  the  House  as  guilty  of  a  contempt,  and  had  so 
argued  during  the  debate;  and  it  was  a  reasonable  inference 
that  they  participated  in  the  resolution  under  which  he  was 
arrested.  Every  man  who  initiates  a  criminal  proceeding 
without  probable  cause,  or  authorizes  an  illegal  arrest,  is 
answerable  to  the  injured  party.     The  plaintiff  would  conse- 


854  1»RIVILEGE  OF  DEBATE. 

quently  be  entitled  to  judgment  against  all  the  defendants, 
were  it  not  that  the  Constitution  provides  that  "  senators 
and  representatives  .  .  .  for  any  speech  or  debate  in  either 
House  shall  not  be  questioned  in  any  other  place/'     This 
clause  should  be  so  construed  as  to  effect  its  object,  which 
is,  that  the  legislative  assemblies  which  represent  the  nation 
may  proceed  freely  in  the  discharge  of  their  duties,  without 
being  answerable   for   their  acts   except  to   their   constitu- 
ents.     Although  the  words  are   "speech  or  debate,"   they 
should  be  regarded  as  including  everything  that  is  said  or 
done  in  either  House  in  the  transaction  of  public  business. 
Such  was  the  interpretation  given  to  the  principle  in  Eng- 
land, where  it  originated,  and  which  had  been  adopted  in 
the  United  States.^     It  followed  that  although  the  House 
of  Representatives  had  exceeded  their  jurisdiction  in  passing 
the  resolution  and  ordering  the  arrest,  the  members  were  not 
civilly  or  criminally  responsible  for  the  mistake.     Were  not 
this  the   rule,  every  unconstitutional  "statute   might   afford 
ground  for  an  action  against  the  members  who  enacted  it,  and 
the  president  or  governor  by  whom  it  was  approved.     We 
may  infer  from  this  decision  that  the  members  of  a  legislative 
assembl}^  are  in  a  more  favorable  position  than  the  judges  of 
courts  of  record,  who  may  be  held  answerable  in  damages  for 
a  plain  usurpation  of  power,  though  not  for  an  erroneous 
exercise  of  the  powers  with  which  they  are  clothed. ^ 

1  Story,  Commentaries,  section  866;  Coffin  v.  Coffin,  4  Mass.  1. 

«  1  Smith's  Lead.  Cas.  (8th  Am.  ed.)  1147,  1149;  Houlden  y.  Smith, 
14  Q.  B.  841. 

Coffin  V.  Coffin,  4  Mass.  1,  "  was  an  action  for  slander,  the  offensive 
language  being  used  in  a  conversation  in  the  House  of  Representatives  of 
the  Massachusetts  legislature.  The  words  were  not  delivered  in  the 
course  of  a  regular  address  or  speech,  though  on  the  floor  of  the  House 
while  in  session,  but  were  used  in  a  conversation  between  three  of  the 
members  when  neither  of  them  was  addressing  the  Chair.  It  had  relation, 
however,  to  a  matter  which  had  a  few  moments  before  been  under  discus- 
sion. In  speaking  of  this  article  of  the  Bill  of  Rights,  the  protection  of 
which  had  been  invoked  in  the  plea,  the  Chief-Justice  said:  'These 
privileges  are  thus  secured,  not  with  the  intention  of  protecting  the  mem- 
bers against  prosecutions  for  their  own  benefit,  but  to  support  the  rights 
of  the  people,  by  enabling  their  representatives  to  execute  the  functions 


PREPAEATION  OF  IMPEACHMENT.  855 

This  decision  may  be  regarded  as  establishing  that  the 
State  legislatures  are  under  the  same  disability  as  Congress, 
and  cannot,  consistently  with  the  Fourteenth  Amendment, 
compel  the  attendance  or  production  of  witnesses  or  papers 
in  any  matter  which  affects  private  rights,  although  the  gov- 
ernment is  also  a  party  in  interest.  But  it  would  at  the 
same  time  appear  that  as  the  Lower  House  is  endowed  with 
the  judicial  power  of  impeachment,  and  may  do  all  that  is 
requisite  for  its  effectual  exercise,  it  is  necessarily  empowered 
to  act  as  an  inquest  in  preparing  the  articles  which  take  the 
place  of  an  indictment,  and  may  issue  subpoenas  and  punish 
any  one  who  is  in  contempt  by  refusing  to  appear.^ 

If  the  conclusion  reached  in  Kilbourn  v,  Thompson  is  at 
variance  with  the  practice  of  the  English  House  of  Commons, 
it  is  entirely  consonant  with  the  principle  so  well  enunciated 
by  Chatham  in  animadverting  on  the  proceedings  of  that 
body  against  Wilkes,  that  jus  faeere  and  Jus  dicere  are  func- 
tions which  in  the  interest  of  freedom  should  not  be  lodged 
in  the  same  hand.^ 

of  th.eir  office  without  fear  of  prosecutions,  civil  or  criminal.  I  therefore 
think  that  the  article  ought  not  to  be  construed  strictly,  but  liberally,  that 
the  full  design  of  it  may  be  answered.  I  will  not  confine  it  to  delivering 
an  opinion,  uttering  a  speech,  or  haranguing  in  debate,  but  will  extend  it 
to  the  giving  of  a  vote,  to  the  making  of  a  written  report,  and  to  every 
other  act  resulting  from  the  nature  and  in  the  execution  of  the  office. 
And  I  would  define  the  article  as  securing  to  every  member  exemption 
from  prosecution  for  everything  said  or  done  by  him  as  a  representative, 
in  the  exercise  of  the  functions  of  that  office,  without  inquiring  whether 
the  exercise  was  regular,  according  to  the  rules  of  the  House,  or  irregular, 
and  against  their  rules.  I  do  not  confine  the  member  to  his  place  in  the 
House,  and  I  am  satisfied  that  there  are  cases  in  which  he  is  entitled  to 
this  privilege  when  not  within  the  walls  of  the  representatives'  chamber.' " 
Kilbourn  v.  Thompson,  103  U.  S.  168,  203. 

1  See  Whitcomb's  Case,  120  Mass.  118.  "  The  range  of  investigation 
which  is  open  to  inquiry  by  the  legislature  is  unlimited.  It  is  the  Gen- 
eral Court  of  the  Commonwealth,  entitled  to  inquire  into  the  condition 
and  efficiency  and  mode  of  operation  of  all  administrative  departments 
of  the  government  of  the  State,  the  proper  execution  of  the  laws,  and  all 
that  concerns  the  public  welfare."     Emery's  Case,  107  Mass.  183. 

2  Thackeray's  Life  of  Chatham,  ii.  1391. 


856  CITY  COUNCIL  CANNOT  COMMIT  WITNESSES. 

Whatever  the  rule  may  be  as  to  Congress  and  the  State 
legislatures,  the  common  council  of  a  city  has  no  power  to 
commit  and  punish  for  contempt,  even  when  it  consists  in 
a  refusal  to  appear  and  answer  questions  put  in  the  course 
of  an  investigation  into  the  conduct  of  the  city  government ; 
and  so  much  of  any  statute  as  undertakes  to  confer  such 
authority  is  invalid.^ 

1  Whitcomb's  Case,  120  Mass.  118. 

*'  Each  House  of  the  British  Parliament  has  the  largest  power  to  punish 
every  description  of  contempt  of  its  authority.  Crosby's  Case,  3  Wils. 
188;  s.  c.  2  W.  Bl.  754;  Burdett  v.  Abbott,  14  East,  1,  and  5  Dow,  165; 
Case  of  the  SherifE  of  Middlesex,  11  A.  &  E.  273;  s.  c.  nom.  The  Queen 
V.  Gossett,  3  P.  &  D.  349.  But  according  to  the  decisions  of  most  emi- 
nent judges,  either  branch  of  a  colonial  legislature  has  no  such  power 
of  punishment;  Kielley  v.  Carson,  4  Moore  P.  C.  63;  Hill  v.  Weldon, 
3  Kerr  N.  B.  1:  even  for  refusal  to  attend  as  a  witness  when  duly  sum- 
moned: Fen  ton  v.  Hampton,  11  Moore  P.  C.  317;  or  for  contempts  com- 
mitted in  the  face  of  the  house:  Doyle  v.  Falconer,  L.  R.  1  P.  Q.  328; 
unless  by  established  usage:  Beaumont  v.  Barrett,  1  Moore  P.  C.  59;  or 
by  express  act  of  the  imperial  Parliament:  Dill  v.  Murphy,  1  IMoore 
(n.  s.)  487;  Speaker  v.  Glass,  L.  R.  3  P.  C.  560.  So  in  Ex  parte  Brown, 
5  B.  &  S.  280,  the  Court  of  King's  Bench  held  that  the  House  of  Keys, 
which  was  the  lower  branch  of  the  legislature  of  the  Isle  of  Man,  and 
had  also  judicial  functions  in  appeals  from  the  verdicts  of  juries,  had  no 
power  to  commit  for  contempt  when  acting  in  its  legislative  capacity. 
It  is  universally  admitted  by  the  law  of  England  that  a  town  or  city 
council  has  no  power,  without  express  act  of  Parliament,  to  make  an 
ordinance  with  penalty  of  imprisonment,  or  to  commit  for  contempt  of  its 
authority.  Grant  on  Corp.  84-86;  Parke,  B.,  in  4  Moore  P.  C.  89;  Baeter 
V.  Commonwealth,  3  Pa.  253. 

"  The  British  Parliament  has  supreme  and  uncontrolled  power,  and 
may  change  the  Constitution  of  England  and  repeal  even  Magna  Charta, 
which  is  itself  only  an  act  of  Parliament.  But  in  this  Commonwealth 
the  legislative  as  well  as  the  executive  authority  and  the  courts  of 
justice  is  controlled  and  limited  by  the  written  Constitution,  and  cannot 
violate  the  safeguards  established  by  the  Twelfth  Article  of  the  Declar- 
ation of  Rights.     Emery's  Case,  107  Mass.  172. 

*'  In  the  United  States,  each  branch  of  a  supreme  legislature  has  the 
same  power  to  commit  for  contempt  as  either  House  of  Parliament.  Such 
a  power  has  been  adjudged  to  be  inherent  in  the  Federal  Senate  and 
House  of  Representatives,  although  not  expressed  in  the  Constitution. 
Anderson  v.  Dunn,  6  Wheat.  204.  A  like  power  doubtless  exists  in 
each  branch  of  the  General  Court  of  Massachusetts  and  of  other  State 


POWER   TO  PUNISH  FOR   A   COMTEMPT. 


857 


legislatures,  -which  are  supreme  within  their  sphere,  and  not,  like  the 
colonial  assemblies  of  Great  Britain,  created  by  and  subordinate  to  the 
national  legislature.  Burnham  v.  Morrissey,  14  Gray,  226;  State  v. 
Matthews,  37  N.  H.  450;  Falvey's  Case,  7  Wis.  630.  But  in  Anderson 
V.  Dunn  the  court  said  that  '  neither  analogy  nor  precedent  would  support 
the  assertion  of  such  powers  in  any  other  than  a  legislative  or  judicial 
body.'  6  Wheat.  233,  234.  To  such  a  subject  the  words  of  Lord  Coke 
apply  with  peculiar  force  :  *  When  authority  and  precedent  is  wanting, 
there  is  need  of  great  consideration  before  that  anything  of  novelty  shall 
be  established,  and  to  provide  that  this  be  not  against  the  law  of  the 
land.'  12  Rep.  75.  At  the  time  of  the  adoption  of  the  Constitution 
of  the  Commonwealth  it  was  no  part  of  the  law  of  the  land  that  mu- 
nicipal boards  or  officers  should  have  power  to  commit  or  punish  for 
contempts.  The  second  article  of  amendment  of  the  Constitution,  which 
first  conferred  upon  the  General  Court  '  full  power  and  authority  to  erect 
and  constitute  municipal  or  city  governments  in  any  corporate  town  or 
towns  in  this  Commonwealth,'  authorized  it  to  grant  to  the  inhabitants 
thereof  such  powers,  privileges,  and  immunities,  '  not  repugnant  to  the 
Constitution,'  as  it  should  deem  necessary  and  expedient  for  the  regu- 
lation and  government  thereof,  and  provided  '  that  all  by-laws  made  by 
such  municipal  or  city  government  shall  be  subject  at  all  times  to 
'be  annulled  by  the  General  Court.' 

"  The  city  council  is  not  a  legislature.  It  has  no  power  to  make  laws, 
but  merely  to  pass  ordinances  upon  such  local  matter  as  the  legislature 
may  commit  to  its  charge  and  subject  to  the  paramount  control  of  the 
legislature.  Neither  branch  of  the  city  council  is  a  court,  or,  in  accurate 
use  of  language,  vested  with  any  judicial  functions  whatever.  Nor  are 
its  members  chosen  with  any  view  to  their  fitness  for  the  exercise  of  such 
functions.  To  allow  such  a  body  to  punish  summarily  by  imprisonment 
the  refusal  to  answer  any  inquiry  which  the  whole  body,  or  one  of  its 
committees,  may  choose  to  make,  would  be  a  most  dangerous  invasion 
of  the  rights  and  liberties  of  the  citizen."  Whitcomb's  Case,  120 
Mass.  118. 


LECTURE   XXXIX. 

3ue  Process  of  Law  as  guaranteed  by  the  Fourteenth  Amendment  does 
not  require  that  the  Case  shall  be  submitted  to  a  Jury,  and  is  satisfied 
when  Provision  is  made  for  a  Hearing  by  a  Duly  Constituted  Tri- 
bunal. —  What  the  Organic  Laws  of  the  Several  States  provide  is, 
that  Trial  by  Jury  shall  continue  as  it  stood  when  they  were  framed. 
—  The  Right  is  specifically  guaranteed  in  Criminal  Cases  by  the  Con- 
stitutions of  the  Several  States,  but  agreeably  to  the  View  taken  in 
Pennsylvania,  may  be  withheld  in  creating  a  New  Offence.  —  A  Pre- 
liminary Finding  by  the  Grand  Jury  is  indispensable  in  the  Federal 
Courts  under  the  Fifth  Amendment,  but  is  not  secured  in  the  States 
by  the  Fourteenth.  —  The  Right  of  a  Jury  Trial  in  Civil  Cases 
depends  in  general  on  the  English  Law  as  it  was  brought  to  this 
Country  and  adopted  here.  —  Proceedings,  in  Chancery  and  the  Ad- 
miralty, For  a  Divorce,  and  Under  the  Right  of  p]minent  Domain, 
ordinarily  take  place  without  a  Jury ;  and  so  of  Contempts  of  Couii} 
and  the  Assessment  of  Taxes.  —  Cases  may  be  decided  summarily  by  a 
Justice  of  the  Peace  or  Commissioner  if  there  is  an  unclogged  Right  of 
Appeal  to  a  Court  and  Jury.  —  Can  a  Judgment  against  a  Servant, 
Surety,  or  Corporation  be  made  conclusive  on  the  Master,  Principal 
Debtor,  or  Corporators  ? 

It  results  from  the  principles  and  decisions  already  cited 
that  under  our  organic  laws  no  man  can  be  deprived  of  life 
or  liberty,  or  of  any  right  which  is  in  the  nature  of  property 
except  in  the  exercise  of  the  police  power  or  through  a 
judgment,  decree,  or  sentence  rendered  with  actual  or  con- 
structive notice,  and  a  reasonable  opportunity  for  a  hearing 
by  some  duly  constituted  tribunal  having  jurisdiction  of  the 
cause  and  the  parties ;  ^  and  if  any  one  of  these  requisites 
is  wanting,  the  entire  proceeding  and  all  that  is  done  under 
it  will  be  void.  An  act  of  Congress  or  of  a  State  legislature 
declaring  that  the  title  to  land  is  not  in  A,  or  assuming  to 
take  it  from  him  for  a  public  use  without,  or  for  a  private 

1  Pennoyer  v.  Neff,  96  U.  S.  714:  Kilbourn  v,  Thompson,  103  Id.  168; 
Richards  v.  Rote,  68  Id.  248. 


TRIAL  BY  JURY.  859 

use  with,  compensation,  is  consequently  invalid  ;  and  if  it 
is  carried  into  effect  by  the  President  or  a  governor,  an 
ejectment  may  be  maintained  against  the  agents  whom  he 
employs.^ 

If  the  proceeding  is  criminal,  the  case,  speaking  generally, 
must  be  submitted  to  a  jury,  and  will  depend  on  their  ver- 
dict ;  2  and  the  issues  of  fact  in  civil  cases,  with  certain  recog- 
nized exceptions,  follow  the  same  rule.^  A  chancellor  cannot 
be  legislatively  empowered  to  decide  the  title  to  goods  or 
land  unless  the  case  falls  under  one  or  more  of  the  heads  of 
equitable  jurisdiction  as  immemorially  defined ;  *  and  when  the 
decision  turns  on  whether  there  was  actual  fraud  in  a  sale 
or  conveyance,  an  issue  must  be  framed  in  Massachusetts 
and  submitted  to  a  jury.^  So  the  right  to  use  the  public 
highways,  including  navigable  streams,  is  in  the  nature  of 
property,  and  a  statute  providing  that  the  damages  for  its 
obstruction  shall  be  assessed  by  arbitrators  or  referees  instead 
of  a  court  and  jury  in  the  ordinary  course  of  the  common 
law  is  invalid.^ 

The  right  of  trial  by  jury  depends  upon  the  provisions  by 
which  it  is  specifically  secured "  rather  than  on  the  phrase 
"  due  process  of  law,"  embodied  in  the  Fifth  and  Fourteenth 
Amendments  ;  and  as  this  is  the  only  clause  in  the  national 
Constitution  bearing  on  the  subject  which  is  applicable  to 
the  States,  they  are  free  to  adopt  any  mode  of  procedure 
which  is  consonant  with  the  principles  of  jurisprudence  and 

1  Davidson  v.  New  Orleans,  96  U.  S.  97,  102 ;  United  States  v.  Lee, 
106  Id.  196,  218;  Dale  v.  Medcalf,  9  Pa.  108;  Menges  v.  Dentler,  33  Id. 
495. 

2  See  Jones  v.  Robbins,  8  Gray,  329;  Nolan's  Case,  122  Mass.  330, 
332;  Commonwealth  v.  Horregan,  127  Id.  450;  Cancemi  v.  The  State, 
18  N.  Y.  128,  135. 

8  Haines's  Appeal,  73  Pa.  169;  Talraes  v.  Marsh,  67  Id.  507;  Haines  r. 
Levin,  51  Id.  412.  In  criminal  cases  the  right  to  a  trial  by  jury  cannot 
be  waived,  nor  can  the  accused  consent  that  the  jurors  shall  be  fewer  in 
number  than  the  customary  twelve,  Cancemi  v.  The  State,  18  N.  Y.  128, 
135,  unless  he  is  explicitly  authorized  to  do  so  by  statute.  Murphy  v. 
The  State,  97  Ind.  579.  ■ 

*  Haines's  Appeal,  73  Pa.  169.  «  Rhines  v.  Clark,  51  Pa.  96. 

5  Powers  V.  Raymond,  137  Mass.  483.       "^  See  Note  at  close  of  Lecture. 

VOL.  II.  — 14 


860  TRIAL  BY  JURY  NOT  ESSENTIAL 

calculated  to  promote  the  ends  of  distributive  justice.^  The 
federal  guaranty  is  confined  to  the  national  courts,  and  does 
not  preclude  the  States  from  authorizing  their  tribunals  to 
decide  civil  or  even  criminal  issues  without  submitting  them 
to  a  jury .2 

What  the  organic  laws  of  the  Union  and  the  several  States 
contemplate  and  are  designed  to  secure  is  that  trial  by  jury 
shall  remain  as  it  stood  in  England  and  this  country  at  the 
declaration  of  independence,^  and  down  to  the  period  when 
they  were  adopted.  Their  object  is  conservative,  —  to  main- 
tain the  existing  status,  and  not  to  lay  down  a  universal  and 
unbending  rule  which  must  be  followed  under  circumstances 
for  which  the  common  law  affords  no  precedent,  or  to  pre- 
clude such  reforms  as  may  in  the  course  of  time  be  found  ad- 
visable for  the  preservation  of  order  and  the  administration 
of  justice.*  Such,  at  least,  is  the  interpretation  given  by  the 
Supreme  Court  of  the  United  States  to  the  famous  clause 
embodied  in  the  Fourteenth  and  Fifteenth  Amendments, 
which  guarantees  due  process  of  law;^  and  it  has  been  put 

1  Kalloch  V.  Superior  Court,  56  Cal.  229 ;  Rowan  v.  The  State,  30  Wis. 
129;  Walker  v.  Sauvinefc,  92  U.  S.  90;  Missouri  v.  Lewis,  101  Id.  22; 
Hurtado  v.  California,  110  Id.  516,  527,  534,  548;  Bank  of  Columbia  y. 
Okley,  4  Wheaton,  235,  244. 

2  Edwards  v.  Elliot,  21  Wallace,  557;  Pearson  v.  Yewdall,  95  U.  S. 
294;  Davidson  v.  New  Orleans,  9f)  Id.  105;  Hurtado  v.  California,  110 
Id.  516,  528,  531.     See  ante,  p.  511. 

3  Anderson  v.  Caldwell,  91  Ind.  454;  Van  Swartow  v.  The  Common- 
wealth, 24  Pa.  131;  McKinney  v.  Monongahela  Nav.  Co.,  14  Id.  65. 

*  Haines  v.  Levin,  51  Pa.  414;  Wynkoop  v.  Cooch,  89  Id.  451;  Ez parte 
Woorten,  62  Mass.  174. 

^  When  "  ample  provision  is  made  for  an  inquiry  as  to  damages  before 
a  competent  court  and  for  a  review  of  the  proceedings  of  the  court  of 
original  jurisdiction  upon  appeal  to  the  highest  court  of  the  State,  this 
is  due  process  of  law  within  the  meaning  of  that  terra  as  used  in  the 
Federal  Constitution,"  Pearson  v.  Yewdall,  95  U.  S.  294,  296,  or,  as  has 
been  said  and  reiterated,  "it  is  not  possible  to  hold  that  a  party  has 
without  due  process  of  law  been  deprived  of  his  property  when,  as  regards 
the  issues  affecting  it,  he  has,  by  the  laws  of  the  State,  had  a  fair  trial 
in  a  court  of  justice  according  to  the  modes  of  proceeding  applicable  to 
such  a  case."  Kennard  y.  Morgan,  92  U.  S.  480  ;  M'Millan  v.  Anderson, 
95  Id.  37 ;  Davidson  v.  New  Orleans,  96  Id.  105. 


TO  DUB  PROCESS   OP  LAW. 


861 


in  some  instances  on  the  specific  clauses  in  the  Constitutions 
of  the  States. 

The  argument  has  been  carried  in  Pennsylvania  to  the 
extent  of  deciding  that  the  legislature  may,  in  creating  a 
new  offence,  withhold  the  guaranties  which  would  be  indis- 
pensable if  it  were  old,  and  deny  the  accused  the  benefit  of 
a  trial  by  jury  because  the  case  does  not  fall  within  the  line 
of  the  common  law.  In  Van  Swartow  v.  The  Commonwealth,^ 
an  act  of  assembly  rendering  the  sale  of  spirituous  liquors  on 
Sunday  penal  on  conviction  before  a  justice  of  the  peace,  was 
sustained  on  the  ground  that  "  every  class  of  cases  triable 
by  jury  in  1790  was  still  triable  in  no  other  way,  or  at  all 
events  the  statute  did  not  render  them  less  numerous."  ^ 

We  have  here  an  entering  wedge  which  may  have  dan- 
gerous consequences.  Were  "  incivism,"  or,  as  we  should 
now  say,  "  disloyalty,"  made  criminal  in  Pennsylvania,  as  it 
was  in  1793  in  France,  the  accused  might  be  brought  before 
a  tribunal  sitting  only  to  convict,  like  that  which  sat  in  Paris 
during  the  Reign  of  Terror,  and  sentenced  to  death  without  a 


1  24  Pa.  131. 

2  "  There  is  nothing  to  forbid  the  legislature  from  creating  a  new  of- 
fence and  prescribing  what  mode  they  please  of  ascertaining  the  guilt  of 
those  who  are  charged  with  it;  many  tribunals  unknown  to  the  framers 
of  the  Constitution,  and  not  at  all  resembling  a  jury,  have  been  erected 
and  charged  with  a  determination  of  grave  and  weighty  matters.  For 
instance,  commissioners,  viewers,  and  appraisers  of  damages,  county  and 
township  auditors,  and  those  oflBcers  of  the  State  Government  whose  duty 
it  is  to  settle  the  public  accounts,  —  all  of  these  functionaries  have  at  dif- 
ferent times  in  our  history  been  empowered  to  decide  the  most  important 
controversies  without  appeal.  In  some  of  them  the  right  of  an  ultimate 
trial  by  jury  has  been  given,  but  this  was  not  done  because  the  laws  were 
believed  to  be  unconstitutional  without  it.  The  purpose  of  the  Constitu- 
tion undoubtedly  was  to  preserve  the  jury  trial  whenever  the  common 
law  gave  it,  and  in  all  other  cases  to  let  the  legislature  and  the  people  do 
as  their  wisdom  and  experience  might  dictate.  Summary  convictions 
were  well  known  before  the  formation  of  the  Constitution,  and  they  are 
not  expressly  or  impliedly  prohibited  by  that  instrument  except  in  so  far 
as  they  are  not  to  be  substituted  for  a  jury  where  the  latter  mode  of  trial 
had  been  previously  established.'*  Van  Swartow  v.  The  Commonwealth, 
24  Pa.  131. 


862  THE  STATES  MAY  DISPENSE 

hearing  before  a  jury  drawn  from  the  mass  of  the  community, 
which  might  contain  some  persons  who  would  be  impartial.^ 

Whether  and  how  far  due  process  of  law  includes  trial  by 
jury  has  been  elaborately  considered  in  several  recent  in- 
stances, where  it  arose  out  of  statutes  authorizing  prosecu- 
tions for  murder  and  other  felonies,  on  an  information  filed 
by  the  attorney-general  without  a  presentment  or  the  find- 
ing of  a  true  bill  by  a  grand  jury.  And  the  difference  of 
opinion  among  the  courts  and  judges  is  such  that  the  debate 
can  hardly  be  considered  as  closed. 

In  Jones  v.  Robbins,^  the  right  to  be  secure  from  an  open 
and  public  accusation  of  crime,  and  from  the  trouble,  ex- 
pense, and  anxiety  of  a  public  trial,  before  a  probable  cause  is 
established  by  the  finding  of  a  true  bill  by  a  grand  jur}^  was 
said  to  be  implied  in  the  requirement  of  due  process  of  law, 
and  declared  one  of  the  privileges  and  immunities  of  English 
law,  and  a  security  to  the  innocent  against  hasty,  malicious, 
and  oppressive  prosecutions. 

The  Fifth  Amendment  puts  the  point  beyond  dispute  in  the 
federal  tribunals,  by  coupling  the  provision  for  due  process 
with  a  declaration  that  no  person  shall  be  held  to  answer  a 
capital  or  otherwise  infamous  crime  unless  on  a  presentment 
of  a  grand  jury.^  When,  however,  the  question  arose  in  Hur- 
tado  V.  California,*  on  an  appeal  from  a  State  court,  under  the 
clause  of  the  Fourteenth  Amendment  forbidding  deprivation 
without  due  process  of  law,  the  English  authorities  were  re- 
ferred to  as  showing  that  misdemeanors  might  be  prosecuted 
on  an  information  filed  by  the  attorney-general  without  bring- 
ing the  case  before  a  grand  jury.  If  this  exception  did  not 
extend  to  felonies  at  common  law,  it  must  be  remembered 
that  the  Constitution  of  the  United  States  "  was  framed  for  an 
undefined  and  expanding  future,  and  for  a  people  gathered 
and  to  be  gathered  from  many  nations  and  of  many  tongues." 
The  phrase  *'due  process  of  law"  should  consequently  receive 
a  comprehensive  interpretation,  and  no  procedure  be  treated 
as  unconstitutional  "  which  makes  due  provision  for  the  trial 

1  See  post,  p.  886.  «  Ex  parte  Bain,  121  U.  S.  1.    See  ante,  p.  510. 

a  8  Gray,  329.  *  110  U.  S.  516. 


WITH  TRIAL  BY  JURY.  863 

of  the  criminal  before  a  court  of  competent  jurisdiction,  for 
bringing  the  party  against  whom  the  proceeding  is  had  into 
court,  and  notifying  him  of  the  case  he  is  required  to  meet, 
for  giving  him  an  opportunity  to  be  heard  in  his  defence  ;  for 
the  deliberation  or  judgment  of  the  court,  and  for  an  appeal 
from  that  judgment  to  the  highest  tribunal  of  the  State  for 
hearing  and  judgment  there."  ^  It  might  well  be  that  what- 
ever the  common  law  tolerated  should  be  regarded  as  due 
process  of  law,  but  it  did  not  follow  that  methods  which  were 
unknown  to  that  law  might  not  be  adopted  if  they  were  con- 
sistent with  the  cardinal  principles  which  are  essential  to  the 
administration  of  justice.^  It  followed  that  a  prosecution, 
trial,  and  conviction  for  murder,  on  information,  after  exami- 
nation and  commitment  by  a  magistrate,  was  due  process  of 
law  within  the  meaning  of  the  Fourteenth  Amendment. 

If,  as  this  somewhat  latitudinarian  interpretation  teaches, 
process  may  vary  from  the  course  of  the  common  law  without 
ceasing  to  be  due  so  long  as  it  conforms  to  the  canons  of 
general  jurisprudence,  the  Fourteenth  Amendment  gives  no 
right  to  a  jury  which  the  States  need  observe  either  before 
arraignment,  or  subsequently  when  the  accused  is  put  on  trial, 
and  the  right  not  to  be  twice  put  in  jeopardy  for  the  same 
offence,  or  be  compelled  to  testify  against  one's  self  in  a 
criminal  case,  is  equally  at  large.^  In  interpreting  this  clause 
of  the  Constitution  it  should  be  remembered  that  due  process 
of  law  is  equivalent  to  the  judgment  of  his  peers  or  law  of 
the  land  of  Magna  Charta.*  The  judicium  parium  suorum 
was  not,  as  the  majority  of  the  court  in  Hurtado  v.  Califor- 
nia^ would  seem  to  have  supposed,  a  right  only  of  the  bar- 
ons, because  the  guaranty  included  every  freeman,  and  the 
yeoman  was  not  less  entitled  to  the  verdict  of  his  equals 

1  Hurtado  v.  California,  110  U.  S.  516;  Kennard  v.  Louisiana,  92  Id. 
480;  Davidson  v.  New  Orleans,  96  Id.  97,  99;  Foster  v.  Kansas,  112  Id. 
201,  206. 

2  Hurtado  v.  California,  110  U.  S.  516,  528,  531. 
8  See  Hurtado  v.  California,  110  U.  S.  516,  547. 

*  Mayo  V.  Wilson,  1  K  H.  53,  55;  The  State  v.  Ray,  63  Id.. 406; 
2  Institutes,  50;  Palairet's  Appeal,  67  Pa.  479.     See  ante,  p.  749. 
«  110  U.  S.  516,  529. 


864  AMENDMENT   OF  INDICTMENT   AFTER 

than  the  peer.^  Such  is  the  view  taken  in  New  Hampshire 
and  Massachusetts,  where  the  stipulation  that  no  man  shall 
be  "  deprived  "  except  by  the  law  of  the  land  or  the  judg- 
ment of  his  peers,  or  their  equivalent  "  due  process  of  law," 
is  held  to  guarantee  the  right  of  trial  by  jury  as  it  existed 
when  the  venerable  clause  of  Magna  Charta  was  embodied 
in  our  organic  laws.^ 

1  2  Inst.  46;  Kent's  Com.  13,  552;  Hurtado  v.  California,  110  U.  S. 
516,  543. 

2  See  The  State  v.  Ray,  63  N.  H.  406;  Jones  v.  Robbins,  8  Gray,  329, 
343;  Saco  v.  Wentworth,  37  Me.  165,  172. 

This  side  of  the  question  is  strongly  put  in  the  following  extract 
from  the  dissenting  opinion  of  Harlan,  J.,  in  Hurtado  v.  California,  110 
U.  S.  516,  553:  "It  is  said  by  the  court  that  the  Constitution  of  the 
United  States  was  made  for  an  undefined  and  expanding  future,  and  that 
its  requirements  of  due  process  of  law  in  proceedings  involving  life,  lib- 
erty, and  property  must  be  so  interpreted  as  not  to  deny  to  the  law  the 
capacity  of  progress  and  improvement ;  that  tha  greatest  security  for  the 
fundamental  principles  of  justice  resides  in  the  right  of  the  people  to 
make  their  own  laws  and  alter  them  at  pleasure.  It  is  difficult,  however, 
to  perceive  anything  in  the  system  of  prosecuting  human  beings  for  their 
lives  by  information  which  suggests  that  the  State  which  adopts  it  has 
entered  upon  an  era  of  progress  and  improvement  in  the  law  of  criminal 
procedure.  I'iVen  the  statute  of  Henry  VII.  c.  3,  allowing  informations, 
and  under  which  Empson  and  Dudley  and  an  arbitrary  Star  Chamber 
fashioned  the  proceedings  of  the  law  with  a  thousand  tyrannical  forms, 
expressly  declared  that  it  should  not  extend  to  treason,  muider,  or  felony, 
or  to  any  other  offence  wherefor  any  person  should  lose  life  or  member. 
See  2  Institutes,  51,  So  great,  however,  were  the  outrages  perpetrated 
by  those  men  that  this  statute  was  repealed  by  1  Henry  VIII.  c.  6.  Under 
the  local  statutes  in  question,  even  the  district-attorney  of  the  county  is 
deprived  of  any  discretion  in  the  premises;  for  if  in  the  judgment  of  the 
magistrate  before  whom  the  accused  is  brought,  —  and  generally  he  is  only 
a  justice  of  the  peace,  — a  public  offence  has  been  committed,  it  becomes 
the  duty  of  the  district-attorney  to  proceed  against  him  by  information  for 
the  offence  indicated  by  the  committing  magistrate.  Thus  in  California 
nothing  stands  betwee.n  the  citizen  and  prosecution  for  his  life,  except 
the  judgment  of  a  justice  of  the  peace.  Had  such  a  system  prevailed  in 
England  in  respect  of  all  grades  of  public  offences,  the  patriotic  men  who 
laid  the  foundation  of  our  government  would  not  have  been  so  persis- 
tent in  claiming  as  the  inheritance  of  the  colonists  the  institutions  and 
guaranties  which  had  been  established  by  her  fundamental  laws  for  the 
protection  of  the  rights  of  life,  liberty,  and  property.     The  Royal  Gov- 


FINDING  BY  GRAND  JUKY.  865 

Where,  as  in  tlie  federal  courts  under  the  Fifth  Amend- 
ment, a  presentment  or  the  finding  of  a  true  bill  is  essential 
to  the  institution  of  a  criminal  proceeding,  the  court  cannot 
by  amending  the  indictment  substitute  a  different  charge  for 
that  which  has  received  the  sanction  of  the  grand  jury ;  ^  and 
it  has  been  held  in  some  instances,  and  recently  by  the  Su- 
preme Court  of  the  United  States,  that  the  rule  is  unbending, 
and  forbids  any  change,  however  trivial,  without  reassemblirig 
the  grand  jury  and  obtaining  their  consent.^  A  different  view 
prevails  in  New  York  and  Pennsylvania,  where  legislative 

ernor  of  New  York  would  not  have  had  occasion  to  write,  in  1687,  to  the 
Home  Government,  that  the  members  of  the  Provincial  Legislature  were 
'  big  with  the  privileges  of  Englishmen  and  Magna  Charta.'  3  Bancroft, 
56.  Nor  would  the  Colonial  Congress  of  1774,  speaking  for  the  people 
of  twelve  colonies,  have  permitted,  as  they  did,  the  journal  of  their  pro- 
ceedings to  be  published  with  a  medallion  on  the  title-page  '  representing 
Magna  Charta  as  the  pedestal  on  which  was  raised  the  column  and  cap 
of  liberty,  supported  by  twelve  hands,  and  containing  the  words:  Hunc 
tuemur,  hoc  nitimur.'  Hurd  on  Habeas  Corpus,  108.  Anglo-Saxon  liberty 
■would  perhaps  have  perished  long  before  the  adoption  of  our  Constitution, 
had  it  been  in  the  power  of  government  to  put  the  subject  on  trial  for  his 
life  whenever  a  justice  of  the  peace,  holding  his  oflBce  at  the  will  of  the 
Crown,  should  certify  that  he  had  committed  a  capital  crime.  That  such 
officers  are  in  some  of  the  States  elected  by  the  people,  does  not  add  to 
the  protection  of  the  citizen ;  for  one  of  the  peculiar  benefits  of  the  grand 
jury  system,  as  it  exists  in  this  country  and  England,  is  that  it  is  com- 
posed, as  a  general  rule,  of  a  body  of  private  persons  who  do  not  hold 
office  at  the  will  of  the  government  or  at  the  will  of  voters.  In  many,  if 
not  in  all  of  the  States,  civil  officers  are  disqualified  to  sit  on  grand  juries. 
In  the  secrecy  of  the  investigations  by  grand  juries,  the  weak  and  helpless, 
proscribed  perhaps  because  of  their  race,  or  pursued  by  an  unreasoning 
public  clamor,  have  found,  and  will  continue  to  find,  security  against 
official  oppression,  the  cruelty  of  mobs,  the  machinations  of  falsehood, 
and  the  malevolence  of  private  persons  who  would  use  the  machinery 
of  the  law  to  bring  ruin  upon  their  personal  enemies.  '  Grand  juries 
perform,'  says  Story,  'most  important  public  functions,  and  are  a  great 
security  to  the  citizens  against  vindictive  prosecutions,  either  by  the 
government  or  by  political  partisans,  or  by  private  enemies.*  Story's 
Const.,  section  1785." 

1  Commonwealth  v:  Child,  13  Pick.  198;  Commonwealth  v.  Mahar,  16 
Id.  120;  State  v.  Sexton,  3  Hawkes  (N.  C),  184. 

2  Ex  parte  Bain,  121  U.  S.  1;  Commonwealth  v.  Drew,  3  Cush.  279. 


866  TRIAL  BY  JURY  AS   SECURED 

enactments  authorizing  formal  amendments  not  affecting  the 
substance  of  the  charge,  —  as,  for  instance,  by  altering  the 
name  of  the  owner  of  the  property  alleged  to  have  been 
stolen,  —  are  viewed  as  constitutional ;  ^  and  it  is  customary 
in  Pennsylvania  in  receiving  the  bill  from  the  grand  jury  to 
ask  whether  they  agree  that  the  court  may  make  formal 
changes  touching  no  matter  of  substance. 

When  the  right  to  a  trial  by  jury  exists  in  civil  cases,  can- 
not readily  be  defined,  but  may  be  gathered  from  the  prac- 
tice of  the  English  and  American  courts  before  and  at  the 
period  when  the  Constitution  was  adopted.  The  colonists 
were  English  by  descent,  and  their  object  in  breaking  the  tie 
with  the  mother-country  and  forming  a  government  of  their 
own  was  to  secure  for  their  adopted  land  the  rights  and 
privileges  which  their  forefathers  struggled  for,  and  they 
deemed  essential  to  freedom ;  ^  and  what  the  English  race  on 
either  side  of  the  Atlantic  generally  accepted,  may  be  taken  as 
a  guide  in  interpreting  the  Constitution  where  it  is  not  explicit 
and  makes  use  of  phrases  borrowed  from  the  common  law.^ 
When,  therefore,  it  appears  that  questions  of  the  kind  in- 
volved were  summarily  determined  under  the  law  of  England 
after  Magna  Charta  and  as  it  was  brought  to  this  country 
and  acted  on  here,  it  is  not  necessarily  an  objection  that  a 
jury  was  not  empanelled,  or  that  the  persons  by  whom  the 
cause  was  decided  were  not  learned  in  the  law  and  did  not 
constitute  or  act  as  a  court  in  the  ordinary  acceptation  of  the 
term.*      Such  an  inference  may  be   drawn  from  the  terms 

1  People  V.  Johnson,  104  N".  Y.  213,  216. 

2  See  Hurtado  v.  California,  110  U.  S.  516,  552,  554;  Anderson  v. 
Caldwell,  91  lud.  454. 

8  Munn  V.  Illinois,  94  U.  S.  113;  Boyd  v.  The  United  States,  116 
Id.  616;  Jones  v.  Robbins,  8  Gray,  329. 

*  The  State  v.  Lewis,  51  Conn.  114;  Murray  v.  Hoboken  Land  Co., 
18  Howard,  275;  Kelly  v.  Pittsburg,  104  U.  S.  79;  New  Orleans  v.  David- 
son, 96  Id.  97;  Seeley  v.  Bridgeport,  53  Conn.  1;  Heacock  v.  Hosnier, 
109  111.  245;  Flaherty  r.  McCormick,  113  Id.  538;  Biddle  v.  The  Com- 
monwealth, 13  S.  &  R.  408;  Emerick  v.  Harris,  1  Binney,  416;  Norton  r. 
McLeary,  8  Ohio  St.  209 ;  Sullivan  v,  Adams,  1  Gray,  476 ;  Common- 
wealth V.  Whitney,  108  Mass.  5. 


BY  THE  STATE  ORGANIC  LAWS.  867 

employed  in  the  Federal  Constitution  and  the  organic  laws 
of  the  several  States,  which  are  :  "  The  right  of  trial  by  jury 
shall  be  preserved;  "  "  Shall  be  as  heretofore  ;  "  "  Shall  remain 
inviolate," — indicating  that  the  purpose  was  not  to  extend 
the  right,  but  to  forbid  any  change  which  would  circumscribe 
it.  ''  The  great  purpose  of  the  Constitution  in  providing  that 
trial  by  jury  shall  be  as  heretofore,  was  not  to  contract  the 
power  to  furnish  modes  of  civil  procedure  in  courts  of  jus- 
tice, but  to  secure  the  right  of  trial  by  jury  in  its  accustomed 
form  before  rights  of  persons  or  property  shall  be  finally  de- 
cided. Hence  the  right  of  trial  as  it  then  existed  was  secured, 
and  the  trial  itself  protected  from  innovations  which  might 
destroy  its  etficiency  as  a  palladium  of  the  liberties  of  the 
citizens.  Beyond  this  point  there  is  no  limitation  upon  legis- 
lative power  in  providing  modes  of  redress  for  civil  wrongs 
and  regulating  their  provisions."  ^ 

In  many  of  the  above  instances  the  statute  gave  a  right 
of  appeal  which  would  lead  to  a  trial  by  jury ;  and  but  for 
this  circumstance  the  summary  proceeding  might  have  been 
held  unconstitutional.^  Though  justices  of  the  peace  and 
judges  cannot  be  substituted  for  the  time-honored  and  cus- 
tomary tribunal  of  twelve  men  taken  from  the  body  of  the 
county,  it  has  yet  been  held  that  if  there  is  an  unclogged  and 
unfettered  right  of  appeal  to  a  court  where  the  citizen  can 
have  the  benefit  of  a  jury,  his  constitutional  right  is  not  im- 
paired.^ A  clog  on  the  right  of  appeal  may,  agreeably  to  the 
same  authorities,  be  equivalent  to  a  denial ;  *  and  such  will  be 
the  effect  of  requiring  a  kind  or  amount  of  security  which 
the  appellant  cannot  reasonably  be  expected  to  give.^  The 
weight  of  authority  seems  to  be  that  exacting  an  oath  that  the 
appellant  has  a  just  defence  or  cause  of  action,  or  requiring 

1  Haines  v.  Levin,  51  Pa.  414 ;  Wynkoop  v.  Cooch,  89  Id.  451. 

2  Jones  V.  Robbins,  8  Gray,  329,  341 ;  Butler  v.  Worcester,  112  Mass. 
441,  556;  Emerick  v.  Harris,  1  Binney,  416;  Norton  v.  McLeary,  8  Ohio 
St.  205,  209;  Lamb  v.  Lane,  4  Id.  167;  Gaston  v.  Babcock,  8  Wis.  503. 

*  Sullivan  v.  Adams,  1  Gray,  476;  Beers  v.  Beers,  4  Conn.  535. 

*  Jones  V.  Bobbins,'  8  Gray,  329,  343;  Saco  v.  Wentworth,  37  Me. 
165,  172;  Plimpton  v.  Somerset,  33  Vt.  283. 

«  See  Reckner  v.  Warner,  22  Ohio  St.  275. 


868  JURY  CUSTOMARILY  DISPENSED   WITH 

him  to  give  bail  for  the  payment  of  costs  if  unsuccessful,  will 
not  contravene  the  constitutional  prohibition.  In  Biddle  v. 
Commonwealth  ^  and  in  Haines  v.  Levin  ^  the  court  held  that 
the  legislature  might,  in  giving  an  appeal  from  a  proceeding 
before  justices  of  the  peace  against  a  tenant,  provide  that  it 
should  not  be  a  supersedeas,  though  the  effect  was  to  eject 
him  summarily  without  a  jury  trial  or  a  day  in  court.  A 
statute  requiring  the  defendant  in  a  criminal  proceeding  to 
deny  the  charge  under  oath,  in  order  to  avoid  a  forfeiture  or 
obtain  a  jury  trial,  is  manifestly  unconstitutional,  as  denying 
the  accused  the  benefit  of  the  presumption  in  favor  of  inno- 
cence, and  compelling  him  to  give  evidence  which  may  mili- 
tate against  himself.  Such  an  enactment  would  be  ex  post 
facto  relatively  to  past  offences,  but  is  also  contrary  to  the 
amendments  which  prohibit  "deprivation,"  without  due  pro- 
cess, for  any  cause,  past  or  future.^ 

The  power  of  a  chancellor  to  determine  questions  of  fact 
arising  in  the  course  of  equitable  jurisdiction  dates  almost 
as  far  back  as  Magna  Charta,  and  there  is  nothing  in  the 
national  or  organic  State  laws  to  forbid  its  exercise  where 
the  case  is  in  other  respects  within  his  jurisdiction.*  But 
it  is  also  true  conversely  that  the  usage  which  confers  the 
power  prescribes  its  bounds,  and  that  the  legislature  cannot 
authorize  a  tribunal  acting  without  a  jury  to  determine  rights 
of  property  unless  there  is  some  equitable  ground  of  relief.^ 

Questions  arising  on  a  quo  warranto  follow  a  like  rule,  and 

1  13  S.  &  R.  405.     See  Custis  v.  Gill,  34  Conn.  49. 

2  51  Pa.  414. 

8  AVynehamer  v.  The  People,  13  N.  Y.  378,  444.     See  ante,  p.  776. 

*  Heacock  v.  Hosmer,  109  111.  245  ;  Fletcher  v.  McCormick,  115  Id.  538, 
543  ;  Burt  v.  Harrah,  65  Iowa,  643;  North  Pennsylvania  Coal  Co.  v. 
Snowden,  42  Pa.  408;  Norris's  Appeal,  64  Id.  275;  Tilmes  v.  Marsh, 
67  Id.  507;  Haines's  Appeal,  73  Id.  169;  Matter  of  the  Empire  City 
Bank,  18  N.  Y.  119,  121. 

5  Haines's  Appeal,  73  Pa.  169,  171.  Agreeably  to  the  Massachusetts 
cases,  the  parties  to  a  suit  in  equity  are  entitled  to  a  jury  trial  of  all  facts 
that  are  properly  within  the  scope  of  a  court  of  common  law.  Franklin 
V,  Green,  2  Allen,  519;  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  102 
Mass.  45,  47;  Powers  v.  Raymond,  137  Id.  483. 


IN  NUMEROUS  INSTANCES.  869 

may,  unless  otherwise  regulated  by  statute,  be  decided  by 
the  judges  as  regards  both  the  law  and  the  facts.^  And 
such  also  is  the  case  as  regards  admiralty  jurisdiction,  even 
where  it  is  extended  to  controversies  which  were  not  originally 
within  its  scope.^ 

The  right  to  convict  and  punish  for  a  contempt  is  with 
still  more  reason  vested  in  the  court  against  which  the  of- 
fence is  committed,  as  being  essential  to  the  administration  of 
justice,  and  one  that  could  not  be  effectually  exercised  if  the 
judges  had  to  impanel  twelve  men  and  allow  them  to  say 
whether  the  accused  had  erred. ^ 

Proceedings  to  ascertain  the  amount  of  compensation  due 
for  property  taken  for  public  use  are  in  the  nature  of  an 
arbitration  or  appraisement  rather  than  a  suit,  and  must  be 
prosecuted,  if  the  legislature  so  ordain,  before  a  statutory 
tribunal  without  impanelling  a  jury,  — a  rule  which  includes 
the  assessment  of  the  damages  and  benefits  resulting  from 
the  opening  of  a  road  or  laying  a  railway  track.* 

1  Ames  V.  Kansas,  111  U.  S.  449;  Foster  v.  Kansas,  112  Id.  201;  State 
V.  Lewis,  51  Conn.  114;  Ligat  v.  The  Commonwealth,  19  Pa.  456,  460; 
Clark  V.  Miller,  54  N.  Y.  528;  Cook  v.  South  Park,  61  111.  115;  Rich  v. 
Chicago,  59  Id.  286;  Lamb  v.  Lane,  4  Ohio  St.  167;  Connecticut  River 
R.  R.  Co.  V.  Commissioners,  127  Mass.  50. 

2  Sheppard  v.  Steele,  43  N.  Y.  52,  57;  Edwards  v.  EUiott,  36  N.  J.  Law, 
419,  516;  Insurance  Co.  v.  Dunham,  11  Wallace,  1. 

«  Ex  parte  Wall,  107  U.  S.  265. 

*  Butler  V.  Worcester,  112  Mass.  541,556;  Anderson  v.  Caldwell,  91  Ind. 
454;  Lipes  v.  Hand,  104  Id.  103;  Cramer  v.  Cleveland  R.  R.  Co.,  5  Ohio 
St.  140, 145;  McKinney  v.  Monongahela  Navigation  Co.,  14  Pa.  65;  Penn- 
sylvania R.  R.  Co.  !'.  Lutheran  Congregation,  53  Id.  445. 

"  The  right  which  the  Constitution  declares  shall  remain  inviolate  is 
the  right  to  trial  by  jury  as  it  existed  when  that  instrument  was  adopted. 
The  right  so  carefully  guarded  and  preserved  is  the  one  transmitted  to  us 
from  our  British  ancestors.  The  right  meant  by  our  Constitution  is  the 
great  one  which  has  occupied  such  a  prominent  place  both  in  law  and  in 
history.  We  are  therefore  to  look  to  the  common  law  to  ascertain  what 
this  right  was,  and  not  to  particular  statutes,  which  may  be  changed  at 
the  pleasure  of  the  legislature.  The  legislature  neither  created  nor  pre- 
served this  right,  although  they  have  often  declared  it.  It  exists  without 
legislation.  The  British  Constitution  does  not  limit  the  power  of  Parlia- 
ment in  the  exercise  of  the  right  of  eminent  domain,  and  that  body  has 


870  ASSESSMENT  OF  TAXES. 

The  constitutional  requirements  are  satisfied  in  this  and 
other  instances  of  a  like  kind  when  a  competent  tribunal  is 

power  to  direct  the  seizure  of  private  property  for  public  use  without  com- 
pensation. It  is  true  that  the  British  statutes  have,  in  almost  every 
instance,  required  compensation;  but  the  right  to  compensation  was  a 
purely  statutory  one,  and  enforceable  only  under  the  provisions  of  the 
statute.  Our  own  cases,  and  indeed  the  American  cases  generally,  treat 
the  proceedings  as  special  statutory  ones;  and  in  this  they  were  clearly 
right,  for  at  common  law  the  proceedings  were  of  purely  statutory  origin, 
and  they  are  none  the  less  so  under  our  Constitution.  The  legislature  is 
not  invested  by  the  Constitution  with  a  new  right,  that  of  eminent  domain, 
for  that  is  an  inherent  right  of  sovereignty.  On  the  contrary,  the  right  is 
restricted,  not  enlarged,  by  the  Constitution.  If  it  were  not  for  the  con- 
stitutional limitation,  property  might  be  seized  without  paying  its  owner 
any  compensation.  The  right,  therefore,  did  not  exist  before  the  Constitu- 
tion, and  is  a  right  to  be  exercised  by  the  legislature  in  the  enactment  of 
statutes  providing  the  mode  of  procedure.  In  short,  the  mode  of  proceed- 
ing is  within  legislative  control,  limited  only  by  the  provisions  of  the 
Constitution." 

In  Pennsylvania  R.  R.  Co.  v.  Lutheran  Congregation,  53  Pa.  445,  the 
question  came  before  the  court  in  proceedings  instituted  by  the  railroad 
company  to  condemn  lands  for  a  right  of  way,  and  the  court  held  that  the 
mode  of  proceeding  was  entirely  within  the  control  of  the  legislature,  and 
said:  "  Indeed  the  right  of  trial  by  jury  has  never  been  held  to  belong  to 
the  citizen  himself  in  proceedings  by  the  State  under  her  powers  of  emi- 
nent domain.  McKinney  v.  Monongahela  Navigation  Co.,  14  Pa.  65. 
In  speaking  of  the  point  made  that  the  act  violated  the  Constitution, 
the  court  said:  '  The  answer  to  that  is,  that  an  appeal  to  a  jury  is  not 
a  matter  of  right.  The  provision  in  our  Constitution  (Art.  I.  sect.  7) 
that  the  right  of  trial  by  jury  shall  remain  inviolate,  does  not  interfere 
with  such  modes  of  ascertaining  damages  for  lands  taken  by  eminent 
domain  as  the  legislature  could  provide  before  its  adoption.'  In  the 
recent  case  of  Kendall  v.  Post,  8  Oregon,  141,  it  was  said  of  the  consti- 
tutional provision  we  are  discussing,  that  *  This  constitutional  provision 
does  not  apply  to  cases  of  taking  private  property  for  public  uses,  but  to 
actions  in  courts  of  justice. '  To  this  effect  runs  the  great  current  of  judicial 
opinion.  Livingston  v.  Mayor,  etc.,  8  Wend.  85;  Beekman  v.  Saratoga, 
etc.,  R.  R.  Co.,  3  Paige,  45  ;  Heyneman  v.  Blake,  19  Cal.  579;  Buffalo,  etc., 
R.  R.  Co.  V.  Ferris,  26  Texas,  588;  City  of  Des  Moines  v.  Layman,  21 
Iowa,  153;  Backus  v.  Lebanon,  11  N.  H.  19;  Rich  v.  City  of  Chicago, 
59  111.  286;  Ames  v.  Lake  Superior,  etc.,  R.  R.  Co.,  21  Minn.  241;  Ander- 
son V.  Caldwell,  91  Ind.  454." 

This  opinion  seems  to  be  a  sound  exposition  of  the  law,  except  in  imply- 
ing that  if  there  were  no  specific  restraint,  property  might  be  taken  for 


» 


TAKING  FOE  PUBLIC   USB.  871 

provided,  proceeding  with  notice,  before  which  the  parties 
may  appear  and  have  a  hearing,  and  the  payment  of  any  sum 
which  may  be  awarded  for  damages  is  charged  upon  the 
public  treasury  of  the  State  or  a  town  or  county.^ 

It  is  not  less  well  settled  that  taxes  which  may  amount  to 
thousands  of  dollars,  and  be  summarily  collected  if  unpaid, 
may  be  assessed  without  notifying  the  owner,  if  he  has  an 
opportunity  to  appeal  and  contest  the  charge  before  some 
duly  constituted  tribunal ;  and  the  objection  that  this  is  not 
due  process  of  law  may  be  met  with  the  reply  that  taxes 
have  not  as  a  general  rule  in  this  country  since  the  declara- 
tion of  independence,  nor  in  England  before  that  time,  been 
collected  by  regular  judicial  proceedings.^  But  it  is  true  in 
this  as  in  every  instance  where  rights  of  property  are  in- 
volved, that  before  the  liability  of  the  taxpayer  is  finally 
determined,  he  must  have  some  kind  of  notice  of  the  proceed- 
ing and  an  opportunity  to  be  heard  with  reference  to  the 
value  of  his  property  and  the  amount  of  the  charge.^ 

In  Wurtz  V.  Hoagland  ^  the  principle  was  held  broad  enough 
to  cover  the  proceedings  of  commissioners  chosen  in  pur- 
suance of  a  statute  by  a  majority  in  number  and  value  of 
the  owners  of  marshland  to  devise  a  plan  of  drainage  and 
apportion  the  cost  among  the  parties  interested,  according  to 

public  use,  notwithstanding  the  clause  prohibiting  that  deprivation,  without 
due  process  of  law.  Whatever  Magna  Charta  forbade  the  king  is  also  as 
regards  life,  property,  and  liberty  forbidden  to  the  General  Government 
and  the  States  by  the  Fifth  and  Fourteenth  Amendments;  and  it  is  incon- 
ceivable that  the  barons  meant  to  give  John  a  latitude  which  would  have 
rendered  every  estate  in  England  insecure. 

1  Bloodgood  V.  The  M.  &  H.  R.  R.  Co.,  18  Wend.  9;  Bruggerraan  v. 
True,  25  Minn.  123. 

2  Kelly  V.  Pittsburg,  104  U.  S.  79;  McMillan  v.  Anderson,  95  Id.  37; 
Howe  V.  Cambridge,  114  Mass.  391. 

«  In  the  Matter  of  McPherson,  104  N.  Y.  306,  321;  Stuart  v.  Palmer, 
74  Id.  183;  Longford  v.  The  Commissioners,  16  Me.  375;  Philadelphia 
V.  Scott,  81  Pa.  80;  Baltimore  &  Ohio  R.  R.  Co.  v.  Wagner,  43  Ohio,  75; 
Jackson  v.  State,  103  Ind.  480;  Wright  v.  Wilson,  95  Id.  408;  Bixby  v. 
Goss,  51  Mich.  551;  1  Smith's  Lead.  Cas.  (8  Am.  ed.)  pp.  1136-1140. 
See  ante,  pp.  312,  314. 

*  114  U.  S.  606,  614. 


872  TRIAL  BY  JURY  UNDER   THE 

their  respective  shares.  As  the  statute  was  applicable  to  all 
lands  of  the  same  kind,  and  no  person  could  be  assessed  under 
it  without  notice  and  an  opportunity  of  being  heard,  the  plain- 
tiffs in  error  had  neither  been  denied  the  equal  protection  of 
the  laws,  nor  deprived  of  their  property  without  due  process 
of  law  within  the  meaning  of  the  Fourteenth  Amendment.^ 
Such  also  is  the  course  of  decision  in  New  Jerse}',  Indiana,^ 
Illinois,  and  other  States  where  the  nature  and  configuration 
of  the  soil  render  drainage  so  essential  to  health  and  agri- 
culture that  it  may  be  enforced  and  the  cost  and  benefits 
assessed  under  the  police  power  or  the  right  of  eminent 
domain,  by  commissioners  appointed  for  that  purpose,  without 
a  trial  by  jury  or  an  appeal  to  the  courts.^ 

As  the  foregoing  remarks  indicate,  questions  of  great  mo- 
ment, including  those  arising  out  of  divorce,'^  insanity,  habitual 
drunkenness,  the  assessment  of  taxes,  and  the  right  to  compen- 
sation for  property  taken  for  public  use  may,  if  the  legislature 
think  fit  and  they  are  not  regulated  by  the  organic  law,  be 
decided  without  a  jury  by  tribunals  which  do  not  follow  the 
course  of  the  common  law.^  Nothing  can  well  more  intimately 
affect  the  citizen,  short  of  a  charge  of  crime,  than  an  allega- 
tion that  he  is,  from  habitual  drunkenness  or  insanity,  unfit  to 
be  at  large  or  to  take  charge  of  his  estate  ;  and  yet  such  ques- 
tions, including  the  appointment  of  a  guardian  of  the  person 
and  property  of  the  drunkard  or  lunatic,  may  be  submitted  in 
some  of  the  States  to  persons  specifically  appointed  by  the 
courts,  although  the  Constitution  provides  that  the  right  to  a 

1  Barbier  v.  Connelly,  113  U.  S.  27;  Walker  v.  Sauvinet,  92  Id.  90; 
Davidson  v.  New  Orleans,  96  Id.  97;  Hagar  v.  Reclamation  District,  111 
Id.  701. 

2  The  Tide-Water  Co.  r.  Coster,  3  C.  E.  Green,  531;  State  v.  Blake,  36 
N.  J.  Law,  442, 447 ;  Lipes  v.  Hand,  104  Ind.  503 ;  Indianapolis  Gravel  Road 
t?.  The  State,  105  Id.  37;  Huston  v.  Clark,  112  111.  344.    See  ante,  p.  287. 

8  Moranda  v.  Spurlin,  100  Ind.  380;  Herick  v.  Vorglet,  110  Id.  279, 
286;  Rutherford  v.  Maynes,  97  Pa.  78,  83;  Brewer  v.  Springfield,  97 
Mass.  152;  People  v.  Nearing,  27  N.  Y.  309. 

*  Cassidy  v.  Sullivan,  64  Cal.  266. 

s  Willyard  v.  Hamilton,  7  Ohio  St.  Ill  ;  Craymon  t;.  Railroad  Co.,  5 
Id.  140,  145  ;  Butler  v.  Worcester,  112  Mass.  441,  516. 


FIFTH  AND  FOURTEENTH  AMENDMENTS.  873 

jury  shall  remain  inviolate,^ — the  reason  assigned  being  that 
the  word  "  remain  "  indicates  that  the  intention  was  that 
whatever  custom  had  established,  should  stand. 

The  weight  of  authority  is  that  whatever  the  rule  may  be 
under  the  organic  provisions  which  specifically  confer  the 
right  to  a  jury  trial,  it  is  not  essential  to  the  due  process 
guaranteed  by  the  Fifth  and  Fourteenth  Amendments.  In 
Ex  parte  WalP  the  argument  for  the  appellant  was  that 
a  summary  proceeding  against  an  attorney  to  exclude  him 
from  the  practice  of  his  profession  on  account  of  acts  for 
which  he  may  be  indicted  and  tried  by  a  jury,  is  in  viola- 
tion of  the  Fifth  Amendment  of  the  Constitution,  which 
forbids  the  deprivation  of  life,  liberty,  or  property  without 
due  process  of  law.  But  this  contention  was  overruled  on 
the  ground  that  the  action  of  the  court  in  cases  within 
its  jurisdiction  is  due  process  of  law.  It  is  a  regular  and 
lawful  method  of  proceeding,  practised  from  time  imme- 
morial. Conceding  that  an  attorney's  calling  or  profession 
is  his  property,  within  the  true  sense  and  meaning  of  the 
Constitution,  it  is  certain  that  in  many  cases,  at  least,  he  may 
be  excluded  from  the  pursuit  of  it  by  the  summary  decision 
of  the  court  of  which  he  is  an  attorney.  The  extent  of  the 
jurisdiction  is  a  subject  of  fair  judicial  consideration.  That 
it  embraces  many  cases  in  which  the  offence  is  indictable,  is 
established  by  an  overwhelming  weight  of  authority.  This 
being  so,  the  question  whether  a  particular  class  of  cases  of 
misconduct  is  within  its  scope,  cannot  involve  any  constitu- 
tional principle.^ 

1  Hagan  v.  Cohen,  29  Ohio,  83  ;  Gaston  v.  Babcock,  8  Wis.  503. 

2  107  U.  S.  265. 

•  "  It  is  a  mistaken  idea  that  due  process  of  law  requires  a  plenary 
suit  and  a  trial  by  jury  in  all  cases  where  property  or  personal  rights 
are  involved.  The  important  right  of  personal  liberty  is  generally  deter- 
mined by  a  single  judge,  on  a  writ  of  habeas  corpus,  using  aflBdavits  or 
depositions  for  proofs  where  facts  are  to  be  established.  Assessments  for 
damages  and  benefits  occasioned  by  public  improvements  are  usually 
made  by  commissioners  in  a  summary  way. 

*'  Conflicting  claims  of  creditors,  amounting  to  thousands  of  dollars, 
are  often  settled  by  the  courts  on  affidavits  or  depositions  alone  ;   and 


874  WHAT  DUE  PEOCESS  OF   LAW  KEQUIRES, 

It  results  from  this  decision  not  only  that  a  trial  by  jury 
is  customarily  dispensed  with  in  numerous  instances  where 
rights  of  property  are  involved,  but  that  due  process  of  law 
does  not  require  that  the  law  shall  be  administered  in  all 
cases  by  a  court  of  record,  or  judges  set  apart  for  the  pur- 
pose and  holding  office  for  life  or  a  definite  term  of  years.^ 
Such  a  rule  would  be  incompatible  with  the   promptitude 

the  courts  of  chancery,  bankruptcy,  probate,  and  admiralty  administer 
immense  fields  of  jurisdiction  without  trial  by  jury.  In  all  cases  that 
kind  of  procedure  is  due  process  of  law  which  is  suitable  and  proper  to 
the  nature  of  the  case  and  sanctioned  by  the  established  customs  and 
usages  of  the  courts.  'Perhaps  no  definition,'  says  Judge  Cooley,  'is 
more  often  quoted  than  that  given  by  Mr.  Webster  in  the  Dartmouth 
College  Case  :  "  By  the  law  of  the  land  is  most  clearly  intended  the  gen- 
eral law,  —  a  law  which  hears  before  it  condemns,  which  proceeds  upon 
inquiry,  and  renders  judgment  only  after  trial."  The  meaning  is,  that 
every  citizen  shall  hold  his  life,  liberty,  property,  and  immunities  under 
the  protection  of  the  general  rules  which  govern  society.'  Cooley's 
Const.  Lira.  353.  "* 

"  The  question.  What  constitutes  due  process  of  law  within  the  meaning 
of  the  Constitution  ?  was  much  considered  by  this  court  in  Davidson  v. 
New  Orleans,  96  U.  S.  97  ;  and  Mr.  Justice  Miller,  speaking  for  the 
court,  said  :  '  It  is  not  possible  to  hold  that  a  party  has  without  due  pro- 
cess of  law  been  deprived  of  his  property  when  as  regards  the  issues 
affecting  it  he  has  by  the  laws  of  the  State  had  a  fair  trial  in  a  court  of 
justice  according  to  the  modes  of  proceeding  applicable  to  such  a  case.' 
And  referring  to  Murray's  Lessee  v.  Hoboken  Land  &  Improvement  Co., 
18  Howard,  272,  he  said,  '  An  exhaustive  judicial  inquiry  into  the  mean- 
ing of  the  words  "due  process  of  law  "  as  found  in  the  Fifth  Amend- 
ment  resulted  in  the  unanimous  decision  of  this  court  that  they  do  not 
necessarily  imply  a  regular  proceeding  in  a  court  of  justice,  or  after  the 
manner  of  such  courts.' 

"  We  have  seen  that  in  the  present  case  due  notice  was  given  to  the 
petitioner,  and  a  trial  and  hearing  was  had  before  the  court  in  the  man- 
ner in  which  proceedings  against  attorneys  when  the  question  is  whether 
they  should  be  struck  off  the  roll  are  always  conducted. 

"  We  think  that  the  court  below  did  not  exceed  its  powers  in  taking 
cognizance  of  the  case  in  a  summary  way,  and  that  no  such  irregularity 
occurred  in  the  proceeding  as  to  require  this  court  to  interpose  by  the 
writ  of  mandamus.  The  writ  of  mandamus  is  therefore  refused." 
Ex  parte  W a.]],   107  U.  S.  265. 

1  See  Wurtz  v.  Hoagland,  114  U.  S.  614  ;  Murray  v.  The  Hoboken 
Land  Co.,  18  Howard,  275. 


IS  NOTICE  AND   A  HEARING.  875 

which  may  be  requisite  for  the  effectual  exercise  of  the  police 
power ;  and  hence  nuisances  may  be  abated  and  the  cost  im- 
posed summarily  on  the  owner  of  the  property  concerned,  by 
commissioners  or  a  board  of  health  appointed  by  the  gov- 
ernor or  the  courts.^  But  the  statement  must  be  taken  with 
the  qualification  that  no  person  can  be  deprived  of  his  land  or 
goods  or  subjected  to  a  pecuniary  liability  without  an  adjudi- 
cation and  such  notice  and  opportunity  for  a  hearing  or  appeal 
as  the  nature  of  the  case  admits ;  ^  and  if  this  safeguard  can 
be  dispensed  with  in  any  case,  it  must  be  on  the  ground  of  a 
necessity  which  does  not  admit  of  delay  and  transcends  ordi- 
nary rules.  A  statute  authorizing  any  one  who  found  logs 
floating  in  the  Susquehanna  to  bring  them  ashore  and  retain 
them  as  his  own  property  unless  they  were  claimed  by  the 
owner  within  two  months,  was  pronounced  invalid  in  Craig  v, 
Kline, ^  as  imposing  a  forfeiture  without  due  process  of  law. 
So  an  act  authorizing  the  owner  of  land  to  seize  and  sell  cat- 
tle found  astray  or  trespassing  on  his  ground,  without  notice 
to  the  person  to  whom  they  belong,  or  reasonable  opportunity 
to  pay  the  damages  and  redeem,  is  unconstitutional,  and  will 
not.be  an  answer  to  an  action  brought  to  recover  compensa- 
tion for  the  wrong>  For  like  reasons  the  legislature  cannot 
provide  that  the  commissioners  named  in  the  act  may,  on 
complaint  made  by  any  person  interested  that  the  embank- 
ments of  a  river  are  out  of  repair,  forthwith  notify  the  riparian 
owners  to  repair  them  in  forty-eight  hours,  and  if  they  fail  to 
comply  within  the  time  aforesaid,  do  the  work  and  enter  the 
expense  as  a  lien  on  the  premises,  because  the  language  rather 
negatives  than  implies  that  the  commissioners  are  to  summon 
the  parties  interested  and  hear  what  they  have  to  say.^ 

1  2  Pa.  366  ;  Easby  v.  The  City  of  Philadelphia,  67  Id.  337. 

2  Stuart  V.  Palmer,  74  N.  Y.  188 ;  Philadelphia  v.  Scott,  81  Pa.  81 ,  83, 
90;  Craig  u.  Kline,  65  Id.  399;  Moulton  v.  Parks,  64  Cal.  166;  Easby  v. 
The  City  of  Philadelphia,  67  Pa.  337,  341.  See  Hurtado  v.  California, 
110  U.  S.  516,  534;  Davidson  v.  New  Orleans,  92  Id.  97. 

8  65  Pa.  399. 

*  Rockville  v.  Nearing,  35  N.  Y.  302;  Dunn  v.  Burleigh,  62  Me.  24. 

«  See  Philadelphia  v.  Scott,  81  Pa.  80,  90. 

VOL.    II. —  15 


876  COUET  MUST  PEOCEED  JUDICIALLY. 

It  is  not  less  essential  that  the  body  by  which  a  decision 
is  pronounced  which  is  judicial  in  its  nature,  in  imposing  a 
liability  or  affecting  the  title  to  land  or  goods,  should  observe 
the  forms  which  are  essential  to  certainty  and  for  preventing 
misrepresentation  and  fraud.  A  judgment  may  be  given 
orally,  but  will  not  become  operative  until  it  is  reduced  to 
writing  and  entered  authentically  of  record  or  in  some  book 
or  paper  containing  the  minutes  of  the  proceedings  of  the 
magistrates  or  commissioners  who  constitute  the  court.  An 
order  of  the  Board  of  Health  for  the  abatement  of  a  nuisance 
must  consequently  be  written,  and  set  forth  clearly  enough 
to  show  that  a  nuisance  exists  and  endangers  the  health  of 
the  neighborhood  ;^  and  it  was  held  that  such  an  adjudication 
must  be  proved  by  the  production  of  the  minutes  or  a  duly 
certified  copy,  as  distinguished  from  parol  evidence.^ 

The  Board  of  Health  was  said  to  be  a  tribunal  created  by 
statute,  clothed  with  large  discretionary  powers,  and  being  a 
public  body,  its  acts  should  be  proved  by  the  highest  and  best 
evidence  which  the  nature  of  the  case  admits  of.  Every 
proceeding  of  a  judicial  character  must  be  in  writing.  It  is 
not  to  be  presumed  that  minutes  of  their  proceedings  were 
not  kept  by  such  a  body,  or  that  the  determinations  which 
seriously  affect  the  property  of  individuals  were  not  reduced 
to  writing,  but  rest  in  parol. 

The  right  to  a  trial  by  jury  in  civil  cases  is  limited  to  issues 
of  fact;  and  when  the  facts  are  admitted  by  a  demurrer  to  the 
evidence  or  pleadings,  the  court  declares  the  law.  And  it  has 
been  held  to  follow  that  the  legislature  may  empower  the 
trial-judge  to  enter  a  compulsory  nonsuit  at  the  close  of  the 
plaintiff's  case  without  the  consent  of  counsel,  which,  though 
always  given  under  such  circumstances  in  England,  might 
be  withheld  in  Pennsylvania.^  "  The  complaint  that  the 
constitutional  right  of  trial  by  jury  had  been  violated,  was 
made  without  due  consideration.     The  province  of  a  jury  has 

1  Philadelphia  v.  Scott,  81  Pa.  80,  90;  Meeker  v.  Van  Rensselaer,  15 
Wend.  397. 

2  Meeker  v.  Van  Rensselaer,  15  Wend.  397. 

8  Wynkoop  v.  Cooch,  89  Pa.  451 ;  Munn  v.  Pittsburg,  40  Id.  364. 


POWER   TO   NONSUIT.  877 

always  been  to  determine  facts.  What  is  the  law  applicable 
to  those  facts,  has  always  been  a  question  for  the  court.  In 
ordering  the  nonsuit,  the  court  conceded  all  the  facts  which 
the  jury  could  have  found,  and  simply  declared  that  under 
the  law  as  applicable  to  them  there  was  no  liability  on  the 
part  of  the  defendant."  ^ 

The  judiciary  are  nevertheless  as  much  bound  by  the  con- 
stitutional safeguard  as  the  legislature  ;  and  while  the  court 
may  at  the  close  of  the  plaintiff's  case  enter  a  nonsuit  or 
direct  a  verdict  for  the  defendant  on  the  ground  that  the  evi- 
dence, with  all  the  inferences  that  can  justifiably  be  drawn 
from  it,  is  insufficient  to  support  a  verdict  for  the  plaintiff, 
it  cannot  adopt  this  course  after  the  defendant  has  opened 
his  case  and  adduced  testimony  for  its  support,  consistently 
with  the  clause  of  the  Seventh  Amendment  guaranteeing  the 
right  of  trial  by  jury,  which,  as  was  declared  in  Baylis  v.  The 
Travellers'  Insurance  Co.^  has  always  been  jealously  guarded 
by  the  Supreme  Court  of  the  United  States.^ 

It  may  be  regarded  as  an  indication  that  the  intervention 
of  a  jury  tends  on  the  whole  to  promote  impartiality  and  pre- 
vent abuse  that  there  is  an  increasing  disposition  to  give  the 
citizen  the  benefit  of  the  constitutional  tribunal  of  twelve 
men,  who  may  be,  and  presumably  are,  free  from  official  bias  ; 
and  such  is  the  rule  in  Pennsylvania  and  some  of  the  other 
States  with  regard  to  proceedings  in  lunacy,  divorce,  and  to 
ascertain  the  damages  occasioned  by  the  exercise  of  the  right 
of  eminent  domain. 

It  seems  to  have  been  thought  in  some  instances  that  a 
man  ma}^  enter  into  a  relation  with  other  persons  which  will, 
according  to  long-established  usage,  not  only  render  him 
answerable  for  their  contracts  and  defaults,  but  operate  wholly 
or  in  part  as  a  waiver  of  his  right  to  a  day  in  court,  and  ex- 
pose his  property  to  be  taken  in  execution  without  notice  or 
a  hearing,  for  their  debts  as  ascertained  by  a  judgment  against 

1  8.  p.  Randall  v.  The  Baltimore  &  Ohio  R.  R.  Co.,  109  U.  S.  478. 

2  113  U.  S.  316. 

8  Elmer  v.  Grymes,  1  Peters,  469;  Castle  v.  Bullard,  23  Howard,  172; 
Hodges  V.  Easton,  106  U.  S.  408. 


878  SUEETTES  OF   PUBLIC   OFFICERS. 

them  or  a  settlement  of  their  accounts.  Such  may  be  the 
relation  if  the  legislature  so  provide,  or  under  a  customary 
rule,  of  master  and  servant,  principal  and  surety,  or  of  a 
municipal  or  private  corporation  to  the  corporators. ^ 

"  Taking,"  said  Curtis,  J.,  in  Murray  v.  The  Hoboken  Land 
Co.,  "  these  two  objections  together,  they  raise  the  questions 
whether,  under  the  Constitution  of  the  United  States,  a  collec- 
tor of  the  customs  from  whom  a  balance  of  account  has  been 
found  to  be  due  by  accounting  officers  of  the  treasury,  desig- 
nated for  that  purpose  by  law,  can  be  deprived  of  his  liberty 
or  property  in  order  to  enforce  payment  of  that  balance 
without  the  exercise  of  the  judicial  power  of  the  United 
States,  and  jQt  by  due  process  of  law  within  the  meaning  of 
those  terms  in  the  Constitution ;  and  if  so,  then,  secondly, 
whether  the  warrant  in  question  was  such  due  process  of  law? 
.  .  .  Tested  by  the  common  and  statute  law  of  England  prior 
to  the  emigration  of  our  ancestors,  and  by  the  laws  of  many  of 
the  States  at  the  time  of  the  adoption  of  this  amendment,  the 
proceedings  authorized  by  the  act  of  1820  cannot  be  denied 
to  be  due  process  of  law  when  applied  to  the  ascertainment 
and  recovery  of  balances  due  to  the  government  from  a  collec- 
tor of  customs,  unless  there  exists  in  the  Constitution  some 
other  provision  which  restrains  Congress  from  authorizing 
such  proceedings.  For  though  'due  process  of  law'  generally 
implies  and  includes  actor,  reus,  judex,  regular  allegations, 
opportunity  to  answer,  and  a  trial  according  to  some  settled 
course  of  judicial  proceedings,^  yet  this  is  not  universally 
true.  There  may  be,  and  we  have  seen  that  there  are,  cases 
•under  the  law  of  England  after  Magna  Charta  and  as  it  was 
brought  to  this  country  and  acted  on  here,  in  which  process, 
in  its  natuie  final,  issues  against  the  body,  lands,  and  goods 
of  certain  public  debtors  without  any  such  trial."     It  followed 

1  See  Murray  v.  Hoboken  Land  Co.,  18  Howard,  275 ;  Levic  v.  Norton, 
51  Conn.  464;  Eames  v.  Savage,  77  Me.  271. 

2  2  Inst.  47,  50;  Hoke  v.  Henderson,  4  Dev.  N.  C.  Rep.  15;  Taylor  v. 
Porter,  4  Hill,  146;  Van  Zandt  v.  Waddel,  2  Yerg.  260;  State  Bank  v. 
Cooper,  Id.  599;  Jones's  Heirs  v.  Perry,  10  Id.  59;  Green  v.  Briggs,  1 
Curtis,  311;  Huber  v.  Reily,  58  Pa.  117. 


LIABILITY  OF  CORPORATOES.  879 

that  as  such  an  accounting  as  took  place  in  the  case  under 
consideration  had  from  a  remote  period  been  deemed  conclu- 
sive in  England  and  the  United  States,  there  was  an  implied 
exception  which  every  collector  of  the  customs  must  be  pre- 
sumed to  know  and  acquiesce  in  on  taking  office,  and  by 
which  he  and  his  sureties  were  consequently  bound.^ 

It  may  be  inferred  from  this  decision  that  a  proceeding 
which  is  in  accordance  with  the  lex  terrce  or  customary  law 
may  be  valid  although  the  defendant  does  not  have  notice  or 
an  opportunity  to  be  heard,  and  that  what  has  been  done  long 
and  usually  will  be  regarded  as  the  law  of  the  land  even 
when  it  does  not  (conform  to  the  rules  which  ordinarily  pre- 
vail in  the  administration  of  justice.^  The  summary  seizure 
and  sale  of  a  tenant's  goods  for  taxes  due  and  unpaid  by  the 
landlord  rests  on  this  ground,  which  has  also  been  held  broad 
enough  to  uphold  laws  rendering  a  judgment  against  a  char- 
tered company  conclusive  of  the  amount  due  in  a  suit  brought 
to  charge  the  members  individually,  although  leaving  them 
free  to  show  that  they  were  not  corporators,  or  that  the  debt 
has  been  paid.^ 

The  principle  is  carried  farther  in  New  England,  where 
a  judgment  against  a  municipal  corporation  may  be  en- 
forced by  a  levy  on  the  goods  of  any  person  indicated  to 
the  sheriff,  without  giving  him  an  opportunit}'-  to  show  that 
he  resides  elsewhere  and  is  not  directly  or  indirectly  liable 
for  the  debt.*  If  such  be  the  fact,  he  is  no  worse  off,  agree- 
ably to  the  view  taken  in  Eames  v.  Savage,  than  a  man 

^  Although  an  express  or  implied  undertaking  to  be  answerable  for 
the  result  of  a  judicial  proceeding  against  a  third  person,  or  that  the 
latter  will  do  whatever  is  there  adjudged,  as  in  the  case  of  a  bail  or  replevin 
bond  or  of  a  warranty  of  title  (1  American  Lead.  Cas.,  5th  ed.,  p.  135), 
is  binding,  and  may  render  the  judgment  conclusive  of  the  liability  so 
assumed,  no  such  obligation  will  arise  from  a  contract  of  suretyship  or 
guaranty  unless  it  is  expressed  in  terms,  or  the  contract  is  customarily  so 
understood  and  interpreted  (2  Smith's  Lead.  Cas.,  8th  Am.  ed.,  p.  958). 

2  McMillan  v.  Anderson,  95  U.  S.  37 ;  Eames  v.  Savage,  77  Me.  212,  221. 

8  Garrison  v.  Howe,  17  N.  Y.  458;  Bank  v.  Ibbotson,  24  Wend.  473. 
See  Pollard  v.  Bailey,  20  Wallace,  520,  524. 

*  Eames  v.  Savage,  77  Me.  212,  214. 


880  LIABILITY  OF   INHABITANTS 

whose  property  is  seized  under  a  writ  against  another,  and 
ma}'',  like  him,  obtain  redress  through  a  suit  against  the 
sheriff.  ''  By  the  common  law  of  Massachusetts  and  of  other 
New  England  States,  derived  from  immemorial  usage,  the 
estate  of  any  inhabitant  of  a  county,  town,  territorial  parish, 
or  school  district,  is  liable  to  be  taken  on  execution  on  a 
judgment  against  the  corporation.^  In  this  Commonwealth 
payment  of  such  a  judgment  has  never  been  compelled  by 
mandamus  against  the  corporation,  as  in  other  parts  of  the 
United  States."  2 

1  5  Dane,  Ab.  15S;  Hawkes  v.  Kennebunk,  7  Mass.  461,  468;  Chase  v. 
Merrimack  Bank,  19  Pick.  564,  569;  Gaskill  v.  Dudley,  6  Met.  546; 
Beardsley  v.  Smith,  16  Conn.  368. 

2  Dillon  on  Muu.  Corp.  (2d  ed.),  sections  446,  686;  Supervisors  v. 
United  States,  4  Wallace,  435 ;    Hill  v.  Boston,  122  Mass.  342,  352. 

"The  plaintiff  was  an  inhabitant  of  the  town  of  Embdeu,  where  he 
began  suit,  and  recovered  judgment  against  that  town  in  this  court. 
The  execution  upon  that  judgment  was  issued,  and  was  levied  upon  the 
plaintiff's  goods,  pursuant  to  Kev.  Sts.  of  1871,  c.  84,  sect.  29,  now  Rev. 
Sts.  c.  4,  sect.  30,  which  expressly  provides  that  executions  against  towns 
shall  be  issued  on  the  goods  and  chattels  of  the  inhabitants  thereof,  and  shall 
be  levied  upon  such  goods  and  chattels.  The  plaintiff,  however,  claims 
that  the  statute  is  forbidden  and  made  null  by  the  last  clause  of  Section 
6  of  the  Maine  Bill  of  Rights,  which  declares  that  a  person  accused  shall 
not  be  *  deprived  of  his  life,  liberty,  property,  or  privileges  but  by  the 
judgment  of  his  peers  or  by  the  law  of  the  land,'  and  also  by  that  clause 
in  Section  1  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States  which  declares  that  no  State  shall  '  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law.' 

"  The  presumption  is  the  other  way,  in  favor  of  the  validity  of  the  stat- 
ute; and  it  is  a  presumption  of  great  sti-ength.  All  the  judges  and  writers 
agree  upon  this.  Chief-Justice  Marshall  in  Fletcher  v.  Peck,  6  Cranch, 
87,  says  that  to  overturn  this  presumption  the  judges  must  be  convinced, 
and  the  'conviction  must  be  clear  and  strong.*  Judge  Washington,  in 
Ogden  V.  Saunders,  12  Wheat.  270,  declared  that  if  he  rested  his  opinion 
on  no  other  gi'ound  than  a  doubt,  that  alone  would  be  a  satisfactory  indi- 
cation of  an  opinion  in  favor  of  the  constitutionality  of  a  statute.  Chief- 
Justice  Mellen,  in  Lunt's  Case,  6  Me.  413,  said,  *  The  court  will  never 
pronounce  a  statute  to  be  otherwise  [than  constitutional],  unless  in  a  case 
where  the  point  is  free  from  all  doubt.'  This  strong  presumption  is  to 
be  constantly  borne  in  mind  in  considering  the  question  here  presented. 

"  The  statute  itself  in  this  case  has  existed  for  half  a  century,  since 
Feb.    27,   1833;    but    it    introduced    no    new    principle  or  rule  in  the 


FOR   DEBTS   OF   TOWN. 


881 


Such  a  rule  may  have  been  just  when  the  inhabitants  of 
the  New  England  towns  were  really  self-governing,  and  met 

jurisprudence  of  this  State,  it  merely  afl&rraed  a  well-known  custom  or 
law  that  had  long  before  existed.  The  practice  of  bringing  suits  against  a 
political  division  or  municipal  organization,  and  collecting  the  judgment 
from  the  individuals  composing  it,  is  believed  to  have  existed  in  England 
and  to  have  been  brought  thence  to  New  England.  Actions  against  '  the 
hundred'  were  known  as  far  back  as  Edward  I.  (stat.  13,  Edw.  I.  c. 
2;  3  Corny n's  Dig.,  Hundred,  c.  2).  As  '  the  hundred  '  had  no  property, 
except  that  of  individuals,  the  judgments  must  have  been  collected  from 
the  individuals.  In  Russell  v.  Men  of  Devon,  2  T.  R.  667,  Lord  Kenyon 
said  that  indictments  against  counties  were  sanctioned  by  the  common 
law,  that  they  would  be  levied  on  the  men  of  the  county.  In  Attorney- 
General  V.  Exeter,  2  Russ.  45,  the  chancellor  said:  'If  the  fee  farm  was 
charged  on  the  whole  place  called  Exeter,  he  who  was  entitled  to  the  rent 
might  have  demanded  it  from  any  one  who  had  a  part  of  or  in  the  city, 
leaving  the  person  who  was  thus  called  on  to  obtain  contributions  from  the 
other  inhabitants  as  best  he  could. '  In  New  England  the  practice  obtained 
from  the  earliest  times,  without  any  statute.  'About  the  year  1790  one 
Gatehill  was  imprisoned  on  an  execution  against  the  town  of  Marblehead 
for  a  debt  the  town  owned.'  5  Dane's  Ab.,  c.  143,  art.  5,  sections  10,  11, 
p.  158.  Mr.  Dane,  as  early  as  his  Abridgment,  said  '  the  practice  was 
justified  by  immemorial  usage'  (Ibid.).  Such  an  imprisonment  so  soon 
after  the  Revolution,  when  the  principles  of  liberty  were  so  freshly  vindi- 
cated, would  never  have  been  permitted  had  it  not  then  been  a  familiar 
practice.  The  practice  has  been  regarded  as  settled  law  in  Massachusetts, 
and  has  been  repeatedly  alluded  to  in  the  opinions  of  the  courts  as  sanc- 
tioned by  immemorial  usage.  Riddle  v.  Proprietors  on  Merrimack  River, 
7  Mass.  187;  Hawkes  v.  Kennebunk,  7  Id.  463;  School  District  in 
Rumford  v.  Wood,  13  Id.  198;  Brewer  v.  New  Gloucester,  14  Id.  216; 
Marcy  v.  Clark,  17  Id.  330,  335;  Merchants'  Bank  v.  Cook,  4  Pick. 
414;  Chase  v.  Merrimack  Bank,  10  Id.  568;  Gaskill  v.  Dudley,  6  Met. 
546;  Hill  v.  Boston,  122  Mass.  344.  The  constitutionality  of  the  law 
does  not  seem  to  have  been  really  questioned  till  the  case  of  Chase  v. 
Bank,  19  Pick.  568,  as  late  as  1837,  and  its  constitutionality  was  there 
said  to  be  so  well  established  as  not  to  be  an  open  question.  The  people 
of  Maine,  while  a  part  of  Massachusetts,  were  familiar  with  the  law  and 
the  practice.  The  Maine  courts  have  repeatedly  recognized  it  as  long 
established  and  as  in  harmony  with  the  State  Constitution.  Adams  v. 
Wiscasset  Bank,  1  Me.  361;  Fernald  v.  Lewis,  6  Id.  268;  Baileyville 
V.  Lowell,  20  Id.  178,  181;  Spencer  v.  Brighton,  49  Id.  326;  Hay- 
ford  V.  Everett,  68  Id.  507.  Its  constitutionality  does  not  seem  to 
have  been  questioned  by  the  profession  till  Shurtliff  v.  Wiscasset,  74 
Me.    130.      In    Connecticut    also    the    antiquity    and    constitutionality 


882  CAN  A  JUDGMENT  AGAINST  A  SERVANT 

habitually  to  determine  what  expenditures  were  necessary 
for  the  common  welfare,  but  is  inapplicable  now  that  they 
have  grown  into  proportions  which  are  incompatible  with 
democratic  government,  and  the  citizens  at  the  best  only 
ratify  nominations  made  for  them  by  others.  When  the 
question  arose  in  the  Supreme  Court  of  the  United  States 
that  tribunal  treated  the  New  England  doctrine  as  at  vari- 
ance with  principles  which  are  generally  recognized  in  this 
country .1  Assuming  that  the  creditor  is  entitled  to  the  pay- 
ment of  his  judgment,  and  that  the  city  neglects  its  duty  in 
refusing  to  raise  the  amount  by  taxation,  it  does  not  follow 
that  the  courts  may  order  the  amount  to  be  made  up  from 
the  private  estate  of  one  of  its  citizens.  Such  '*  a  summary 
proceeding  would  involve  a  violation  of  the  rights  of  the  lat- 
ter. He  has  never  been  heard  in  court.  He  has  had  no 
opportunity  to  establish  a  defence  to  the  debt  itself,  or,  if 
the  judgment  is  valid,  to  show  that  his  property  is  not  liable 
to  its  payment.  It  is  well  settled  that  legislative  exemptions 
from  taxation  are  valid,  that  such  exemptions  may  be  per- 
petual in  their  duration,  and  that  they  are,  in  some  cases, 
beyond  legislative  interference.  The  proceeding  supposed 
would  violate  the  fundamental  principle  contained  in  chapter 
xxix.  of  Magna  Charta  and  embodied  in  the  Constitution  of 
the  United  States,  that  no  man  shall  be  deprived  of  his  prop- 
erty without  due  process  of  law  ;  that  is,  he  must  be  served 
with  notice  of  the  proceeding,  and  have  a  day  in  court  to 
make  his  defence."  ^ 

In  Levick  v,  Norton^  a  statute  rendering  a  recovery  for 

of  the  law  have  been  repeatedly  affirmed.  Beers  v.  Botsford,  3  Day,  159; 
Beardsley  v.  Smith,  16  Conn.  368. 

"  That  a  statute  or  rule  of  law  or  custom  has  so  long  existed  unques- 
tioned, and  has  been  so  often  invoked,  and  universally  approved,  and  has 
become  ingrained  like  this  in  the  jurisprudence  of  a  State,  is  a  strong,  if 
not  conclusive,  reason  for  pronouncing  it  constitutional  and  a  part  of  the 
law  of  the  land.  State  v.  Allen,  2  McCord,  56;  Sears  v.  Cottrell,  5  Mich. 
251." 

1  Reese  v.  The  City  of  Watertown,  19  Wallace,  107,  116;  Merriwether 
r.  Garrett,  102  U.  S.  472,  515.     See  ante,  p.  640. 

2  19  Wallace,  122.  »  51  Conn.  461. 


BE  MADE  CONCLUSIVE   ON   THE  MASTER?  883 

an  injury  resulting  from  the  defendant's  negligence  in  driv- 
ing a  carriage,  conclusive  of  the  wrong  done  and  the  damages, 
in  an  action  against  a  third  person  on  proof  that  he  was  the 
owner  of  the  carriage,  unless  he  could  show  that  the  judgment 
was  obtained  fraudulently,  was  upheld,  notwithstanding  its 
injustice  and  the  opening  which  it  afforded  for  collusion. 
Such  a  result  is  hardly  reconcilable  with  the  constitutional 
requirement  that  no  man  shall  be  bound  by  that  which  he 
has  no  opportunity  to  controvert.^ 

In  Levick  v.  Norton  the  relation  of  master  and  servant  was 
treated  as  analogous  to  that  of  principal  and  surety,  and  the 
court  relied  on  the  cases  which  hold  that  a  judgment  against 
an  administrator  concludes  the  sureties  in  his  official  bond.^ 
The  real  ground  of  these  decisions,  however,  is  tliat  such  a 
bond  is  an  undertaking  that  the  administrator  shall  pay  what 
he  owes,  as  decreed  by  the  court  having  jurisdiction  of  his 
accounts.3  They  are  not,  therefore,  applicable  to  ordinary 
contracts  of  suretyship,*  nor  do  they  show  that  a  judgment 
in  tort  against  a  servant  can  be  conclusive  on  the  master 
on  general  principles  or  under  an  act  of  assembly,  unless  it 
was-  done  at  the  master's  command,  and  then  only  as  evidence 
of  the  damages  in  an  action  by  the  servant  for  indemnity.^ 

1  See  Merriwether  y.  Garrett,  472,  515. 

2  Wiley  V.  Paulk,  6  Conn.  74;  Heard  v.  Lodge,  20  Pick.  53;  Common- 
wealth V.  Gracey,  96  Pa.  7 ;  Shepard  v.  Pebbles,  58  Wis.  373 ;  Heard  v. 
Mibshill,  11  Gill.  &  J.  383. 

^  2  Smith's  Lead.  Cas.  (8th  Am.  ed.)  958;  1  American  Lead.  Cas. 
(5th  ed.)  13. 

*  Giltinan  v.  Strong,  64  Pa.  242,  246;  Douglas  v.  Rowland,  24 
Wend.  35. 

6  See  Mason  v.  Strickland,  17  S.  &  R.  354  ;  Giltinan  v.  Strong,  64  Pa. 
242,  247. 


NOTE. 
The  following  extract  from  Stimpson's  American  Statute  Law  gives 
the  organic  laws  of  the  several  States  relating  to  trial  by  jury  :  — 

In  Civil  Cases. 
*•  §  72.  Trial  by  Jury.^    In  twenty-seven  States  there  is  a  general 
provision  in  the  Constitution  that  the  right  to  trial  by  jury  shall  remain 
1  "Founded  on  the  Declaration  of  Independence  and  U.  S.  C.  Amt.  7. 


884  TRIAL  BY  JURY   IN   CIVIL   CASES. 

inviolate,  —  K.  I.  C.  1,  15;  Ct.  C.  1,  21;  N.  Y.  C.  1,  2;  N.  J.  C.  1,  7; 
Pa.  C.  1,  6;  O.  C.  1,  5;  111.  C.  2,  5;  Mich.  C.  6,  27;  Wis.  C.  1,  5; 
Iowa  C.  1,  9;  Minn.  C.  1,  4;  Kan.  C.  (Bill  of  Rights)  5;  Neb.  C.  1,  6  ; 
Md.  (Declaration  of  Rights)  5;  Del.  C.  1,  4;  Ky.  C.  13,  8  ;  Tenn.  C.  1, 
G;  Mo.  C.  2,  28;  Aik.  C.  2,  7;  Tex.  C.  1,  15;  Cal.  C.  1,  7;  Nev.  C.  1, 
3;  S.  C.  C.  1,  11;  Ga.  C.  6,  18,  1;  Ala.  C.  1,  12;  Miss.  C.  1,  12;  Fla.  C. 
(Declaration  of  Rights)  3;  N.  M.  95,  1;  1851,  July  12,  §  12;  Ariz.  (BiU 
of  Rights)  8. 

*'  In  three  this  provision  applies  only  to  civil  cases,  —  Ind.  C.  1,  20; 
W.  Va.  C.  3,  13;  Ore.  C.  1,  17.  So,  in  five,  only  to  controversies  con- 
cerning property  and  suits  between  two  or  more  persons  (i.e.  civil  suits), 

—  N.  H.  C.  1,  20;  Mass.  C.  1,  15;  Me.  C.  1,  20;  Va.  C.  1,  13;  N.  C.  C. 
1,  19.  And  in  two  it  is  provided  that  the  right  shall  only  in  civil  cases 
exist  when  an  issue  of  fact  proper  for  a  jury  is  joined  in  a  court  of  law,  — 
Vt.  C.  1,  12;  Md.  C.  15,  6.  ^ 

*♦  In  Texas  the  Constitution  provides  that  the  legislature  shall  pass 
laws  to  regulate  trial  by  jury,  and  maintain  its  purity  and  efficiency. 

"  §  73.  Exceptions.  (A)  In  three  States  there  is  no  constitutional  right 
to  trial  by  jury  when  the  amount  in  controversy  does  not  exceed  a  certain 
sum;i  as  in  detail  $5:  Md.  C.  15,  6;  $20:  W.  Va.  C.  3,  13;  $100:  N.  H. 
C.  1,  20. 

"  In  one  there  is  no  jury  in  civil  cases  before  a  justice,  —  W.  Va. 
But  in  one  the  right  always  exists  when  the  title  to  real  estate  is  involved, 

—  N.  H.  And  in  three  the  right  is  expressly  declared  to  extend  to  all 
cases  at  law,  without  regard  to  the  amount  in  controversy  :  ^  Wis.,  Minn., 
Ark. 

"  (B)  The  Constitutions  of  nine  States  make  an  exception  to  the  right 
to  a  jury  '  in  cases  heretofore  used  and  practised,'  —  N.  H.,  Mass.,  Me., 
K  Y.,  Pa.,2  111  ,3  Md.,  Del.,  Mo. 

*'  (C)  In  two  the  legislature  may  alter  the  law  trial  by  jury  as  to 
causes  arising  on  the  high  seas,  or  concerning  mariners'  wages,  — N.  H., 
Mass. 

'*  (D)  In  four  the  legislature  may  in  civil  cases  authorize  a  trial  by  a 
jury  of  less  than  twelve  men,  —  Mich.  C.  4,  46;  Col.  C.  2,  23;  Fla.  C.  6, 
12;  La.  C.  116.  So,  in  eight  States,  in  inferior  courts  (as  before  a  justice 
of  the  peace),  —  111.;  Iowa;  N.  C.  (six  men)  C.  4,  27;  Neb.;  W.  Va. ; 
Mo. ;  Tex.  C.  5,  17  (six  men  in  the  county  court) ;  Ga.  (but  not  less  than 
five  men).  So,  in  New  Jersey,  in  civil  suits  involving  less  than  $50, 
by  a  jury  of  six  men.  And  in  California  the  parties  may  agree  on  a  jury 
less  than  twelve  in  number.  In  West  Virginia  no  jury  is  allowed  in  cases 
tried  before  a  justice  of  the  peace,  except  on  appeal  therefrom. 

"  (E)  And  by  the  Constitutions  of  three  States,  in  civil  actions,  three 
fourths  of  a  jury  may  render  a  verdict,  —  Tex.  C.  5,  13;  Cal. ;  Nev. 

1  "See  §  72,  note^  ^  This  would  seem  to  follow  from  the  silence  of  the 
Constitution  in  other  States.    ^  The  wording  is,  however,  ambiguous. 


TRIAL  BY  JURY  IN   CRIMINAL  CASES.  885 

"  §  74.  Waiver.  By  the  Constitutions  of  eleven  States  the  right  to  a 
trial  by  jury  may  be  waived  by  the  parties  in  all  civil  cases  in  the  manner 
prescribed  by  law,  —  Vt.  C.  2,  31;  N..Y.  C.  1,  2;  Pa.  C.  5,  27;  Wis.  C. 
1,  5;  Minn.  C.  1,  4;  Md.  C.  4,  1,  8;  N.  C.  C.  4,  13;  Ark.  C.  2,  7;  Cal. 
C.  1,  7;  Nev.  C.  1,  3;  Fla.  C.  (Declaration  of  Rights)  3;  Ariz.  (Bill  of 
Rights)  82. 

"  And  by  that  of  two  States  the  right  shall  be  deemed  waived,  in  all 
civil  cases,  unless  demanded  by  the  parties,  or  one  of  them,  in  the  man- 
ner prescribed  by  law,  —  Mich.  C.  6,  27;  Tex.  C.  5,  10. 

"  So,  in  one  State,  the  Constitution  only  provides  that  the  right  shall 
be  preserved  if  required  by  either  party,  —  \V.  Va.  C.  3,  13." 

In  Criminal  Cases. 

'*  §  131.  Jury  Trial.  (A)  In  most  States  the  Constitution  provides 
that  all  persons  so  accused  shall  have  a  speedy  public  trial  by  an  impartial 
jury,  -Me.  C.  1,  6;  Vt.  C.  1,  10;  R.  I.  C.  1,  10;  N.  J.  C.  1,  8;  Pa.  C. 
1,  9;  O.  C.  1,  10;  Ind.  C.  1,  13;  111.  C.  2,  9;  Mich.  C.  6,  28;  Iowa  C.  1, 
10;  Minn.  C.  1,  6;  Kan.  C.  (Bill  of  Rights)  10;  Neb.  C.  1,  11;  Md. 
(Declaration  of  Rights)  21;  Del.  C.  1,  7 ;  Va.  C.  1,  10;  Mo.  C.  2,  22; 
Ark.  C.  2,  10;  Tex.  C.  1,  10  ;  Ore.  C.  1,  11 ;  Col.  C.  2,  16 ;  S.  C.  C.  1, 
13;  Ga.  C.  1,  1,  5;  La.  C.  7;  N.  M.  95,  1;  1851,  July  12,  §  8. 

"  So,  in  several,  all  persons  prosecuted  by  indictment  or  information,  — 
Ct.  C.  1,  9;  Wis.  C.  1,  7;  Ky.  C.  13,  12;  Miss.  C.  1,  7;  N.  M.  50,  7. 
And  in  two  States,  all  persons  prosecuted  by  indictment  (or  presentment), 
—  Tenn.  C.  1,  9;  Ala.  C.  1,  7;  Wash.  766. 

"  In  several,  the  provision  is  simply  that  the  accused  shall  have  a 
speedy  and  public  trial,— Cal.  C.  1,  13;  Dak.  C.  Cr.  P.  11;  Ida.  Cr.  Pr. 
10;  Mon.  Cr.  Pr.  9;  Uta.  Cr.  Pr.  7;  Ariz.  426. 

"  (B)  And  in  three,  the  Constitution  provides  that  (except  as  below) 
the  legislature  shall  make  no  law  subjecting  a  person  to  capital  (or  in- 
famous, in  Massachusetts)  punishment  without  trial  by  jury,  — N.  H.  C. 
1,  16  ;  Mass.  C.  1,  12 ;  S.  C.  C.  1,  14. 

"  (C)  In  two,  that  the  right  by  jury  shall  remain  inviolate  in  criminal 
cases,  —  N.  Y.  C.  1,  2;  Col.  C.  2,  23;  Fla.  C.  (Declaration  of  Rights)  3. 
See  also  §  72  for  other  States. 

"  (D)  In  several,  that  no  person  shall  be  convicted  of  any  crime  but 
by  the  verdict  of  a  lawful  jury  in  open  court,  —  W.  Va.  C.  3,  14;  N.  C. 
C.  1,  13;  Wash.  767;  Dak.  C.  Cr.  P.  14;  Ida.  Cr.  Pr.  13;  Mon.  Cr.  Pr. 
8;  Uta.  Cr.  Pr.  10;  N.  M.  50,  8 ;  Ariz.  429. 

"  (Except  upon  confession,  demurrer,  etc.:  Wash.,  Dak.,  Ida.,  Uta., 
Hon.,  Ariz.) 

"  Exceptions.  In  two,  the  legislature  may  provide  other  means  of 
trial  (1)  for  offences  not  infamous.  See  above,  B.  So,  in  two  others, 
for  petty  offences,  —  Del.  C.  6,  15;  N.  C.  So,  in  two  others,  all  offences 
less  than  felony,  and  in  which  the  penalty  does  not  exceed  $100  or  thirty 


886  JURY  TRIAL  FOR  NEW  OFFENCES. 

days'  imprisonment,  shall  be  tried  summarily  before  a  justice  of  the  peace, 
—  Iowa  C.  1,  11;  S.  C.  C.  1,  19.  So,  in  Tennessee,  no  fine  of  more  than 
$50  shall  be  imposed  except  by  a  jury,  —  Tenn.  C.  6,  14.  But  in  all  such 
cases  of  trial  without  a  jury  there  must  be  a  right  of  appeal,  — Iowa, 
N.  C,  S.  C. 

"  Laws  may  be  made,  in  two  States,  for  the  government  of  the  army 
and  navy,  without  providing  for  trial  by  jury,  —  N.  H.,  Mass. 

"  Waiver.  The  Constitution  of  California  provides  that  a  jury  may  be 
waived  by  consent  of  both  parties  in  all  criminal  cases  not  amounting  to 
felony,  —  Cal.  C.  1,  7. 

"  So,  in  New  Mexico,  the  accused  may  in  all  cases  waive  jury  trial,  — 
1851,  July  12,  §8." 

For  the  corresponding  provisions  in  the  Constitution  of  the  United 
States,  see  ante,  p.  510. 

In  Wynehamer  v.  The  People,  13  N.  Y.  378,  457,  the  judges  took  a 
view  better  calculated  than  that  adopted  in  Van  Swartow  v.  Common- 
wealth (see  ante,  p.  860)  to  promote  the  object,  which  is  not  that  the 
legislature  may  introduce  new  exceptions,  but  that  there  shall  be  none 
save  those  which  existed  when  the  organic  law  was  passed.  The  intent 
was  to  preserve  the  right  as  it  stood  when  the  Constitution  was  adopted ; 
and  as  the  privilege  is  equally  important  whetl/er  the  offence  existed 
previously,  or  is  a  new  creation,  a  distinction  should  not  be  made  arbi- 
trarily where  there  is  none  in  principle.  The  inquiry  should  not  be, 
Is  the  instance  specifically  new,  but  does  it  belong  to  a  class  in  which 
the  accused  was  entitled  to  the  verdict  of  his  peers  ? 


LECTURE   XL. 

An  Action  may  be  maintained  against  an  Officer  or  Agent  of  a  State  or  of 
the  General  Government  for  Property  taken  or  held  under  Cover  of  an 
Illegal  Law  or  Order.  —  Such  a  Suit  is  not  against  the  State  or  within 
the  Terms  of  the  Eleventh  Amendment,  nor  does  it  transgress  the  Rule 
that  a  Right  of  Property  cannot  be  judicially  enforced  against  a  Foreign 
Sovereign  or  Country.  —  The  Maxim  that  the  King  can  do  no  Wrong 
applies  to  the  States  and  the  United  States,  and  Acts  which  transcend 
the  Organic  Law  are  to  be  imputed  to  the  Persons  by  whom  they  are 
performed,  though  done  at  the  Command  of  the  Governor  or  of  the 
President,  or  in  Pursuance  of  an  Unconstitutional  Statute. 

Having  now  considered  the  clauses  which  protect  life,  lib- 
erty, and  property  from  deprivation  b}^  a  State  or  the  General 
Government,  the  question  naturally  occurs.  What  is  the  remedy 
if  they  are  violated  ?  and  we  may  be  surprised  to  find  it  seri- 
ously contended,  as  recently  as  the  year  1882,  that  as  regards 
property  which  has  been  wrongfully  taken  and  detained  by 
officers  or  agents  of  a  State  or  of  the  General  Government, 
there  is  none  which  can  be  effectually  used  as  a  means  of  re- 
dress. "  No  State  shall  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,"  is  the  language  of  the 
Fourteenth  Amendment ;  but  if  a  man  takes  another's  land 
or  goods,  and  does  not  rely  on  a  State  law  or  command,  or  an 
authority  from  the  General  Government,  as  a  justification,  it  is 
simply  a  private  wrong,  for  which,  unless  the  question  arises 
between  citizens  of  different  States,  the  federal  tribunals 
cannot  afford  a  remedy.^  If,  on  the  other  hand,  the  wrong- 
doer alleges  a  command  of  the  legislature  or  governor  as  a 
defence,  and  that  he  took  and  holds  the  property  on  behalf  of 
the  State,  the  plaintiff  is  confronted  with  the  argument  that 

1  Ultiited  States  v.  Cruikshank,  92  U.  S.  542;  Virginia  v.  Rives,  100 
Id.  373;  United  States  v.  Harris,  106  Id.  629.     Ante,  p.  534. 


888  INTERVENTION   OF   THE   ATTORNEY-GENERAL 

the  State  is  a  party  in  interest,  and  may  throw  her  mantle 
as  a  sovereign  around  the  person  whom  she  employs  or  sanc- 
tions. By  the  terms  of  the  Eleventh  Amendment  a  State 
is  beyond  the  reach  of  process,  and  as  she  necessarily  acts 
through  agents,  the  exemption  would  be  illusory  if  an  ac- 
tion could  be  maintained  for  property  taken  and  detained  at 
her  command.^  So  the  Fifth  Amendment  is,  agreeably  to 
this  view,  equally  inoperative  as  a  protection  against  Con- 
gress, the  President,  or  a  Cabinet  officer,  or,  as  it  would 
seem,  officials  of  a  lower  grade,  because  the  United  States 
may  not  be  sued,  and  the  privilege  would  be  unavailing  if 
they  could  be  prosecuted  through  their  officers  and  agents.^ 
The  Monstrans  de  Droit  and  Petition  de  Droit  of  the  English 
law  do  not  exist  here,  and  there  is  nothing  to  take  their 
place.  Peremptory  as  is  the  prohibition  against  deprivation 
without  due  process  of  law,  as  thus  interpreted,  it  reads 
as  follows  :  The  government  shall  not  arbitrarily  deprive  the 
citizen  ;  but  if  it  violates  the  rule  and  does  not  choose  to  pro- 
vide the  means  of  redress,  the  jurisdiction  of  the  courts  will 
fail.  During  the  ninety  years  which  had  elapsed  since  the 
Constitution  was  adopted.  Congress  had  not  seen  fit  to  give  a 
remedy,  and  might  never  consent  to  surrender  a  prerogative 
which  rendered  them  despotic.  An  illegal  claim  by  the 
United  States  to  private  property  could  not  be  enforced  ;  but 
if  the}^  took  and  held  the  land  or  chattels  under  color  of  an 
invalid  law  or  judgment,  and  the  owner  came  into  court  for 
restitution,  the  suit  would  be  dismissed,  though  brought  against 
the  persons  in  possession,  because  the  government  was  the 
party  in  interest,  though  not  of  record.  The  prohibition  was 
therefore  virtually  a  dead  letter  and  might  so  remain  indefi- 
nitely. The  source  of  the  doctrine  lay  in  the  royal  preroga- 
tive, which  forbade  a  suit  against  the  Crown.  The  States  and 
the  government  of  the  United  States  were  not  less  sovereign 
than  a  king,  and  if  a  citizen  was  dispossessed  without  due 
process  of  law,  and  sought  redress,  and  it  appeared  that  the 

1  Poindextery.  Greenhow,  114  U.  S.  270,  285;  Marye  v.  Parsons,  Id. 
325,  330. 

2  See  United  States  v.  Lee,  106  U.  S.  196,  244. 


IN  BEHALF  OF   THE  UNITED   STATES.  889 

wrong  was  done  at  the  command  of  the  government,  or  by 
an  agent  whom  it  avowed,  the  proceeding  would  fail  for  want 
of  jurisdiction. 

Such  substantially  was  the  view  taken  by  the  minority  of 
the  court  in  the  case  of  the  United  States  v.  Lee,^  which 
grew  out  of  the  following  circumstances :  The  suit  was 
brouglit  for  the  recovery  of  an  estate  known  as  Arlington, 
which  had  been  sold  at  the  instance  of  the  United  States  for 
taxes,  and  bid  in  by  the  government.  Confiscation  is  for- 
bidden by  the  Constitution  even  as  a  penalty  for  treason  ; 
but  the  board  which  was  charged  during  the  Civil  War  with 
**  the  collection  of  taxes  in  the  insurrectionary  districts " 
adopted  a  rule  not  to  receive  payment  except  from  the  owner 
in  person,  which  was  confiscatory  in  its  operation  when,  as 
generally  happened,  he  was  within  the  Confederate  lines, 
and  could  not  directly  tender  the  amount  due.  The  plain- 
tiff claimed  as  the  heir  of  her  mother,  Mrs.  Lee,  to  whom 
the  land  belonged  under  the  will  of  her  grandfather,  George 
Washington  Custis.  She  was  the  wife  of  General  Robert 
Lee,  who  was  in  command  of  the  Confederate  forces  in  Vir- 
ginia ;  and  when  her  agent  appeared  before  the  commis- 
sioners he  was  told  that  they  would  not  take  the  money 
unless  she  came  herself.  The  land  was  then  sold  for  unpaid 
taxes  ;  but  as  a  tender  is  equivalent  to  payment,  there  was 
no  default,  and  the  sale  did  not  pass  the  title. 

Such  was  the  plaintiff's  case,  and  no  part  of  it  was  contro- 
verted b}^  the  defendants.  But  it  was  contended  on  their 
behalf  that  as  they  were  in  possession  under  the  command  of 
the  President,  and  the  property  had  been  appropriated  by 
the  government  to  public  uses  as  a  military  station  and  na- 
tional cemetery  for  the  burial  of  deceased  soldiers  and  sailors, 
the  court  had  no  jurisdiction,  and  should  direct  a  stay  of  pro- 
ceedings. Such  also  was  the  ground  taken  by  the  Attorney- 
General,  who  appeared  on  the  behalf  of  the  United  States, 
"  without  submitting  their  rights."  This  view  was  overruled 
in  the  trial  court,  and  subsequently  by  the  court  of  last  resort, 
notwithstanding  the  dissent  of  four  of  the  judges,  who  relied 
1  106  U.  S.  196. 


890  EJECTMENT   WILL  LIE  FOPw  LAND 

on  the  English  authorities  as  showing  that  in  a  case  like  that 
in  hand,  ••'  no  action  can  be  maintained  to  recover  the  posses- 
sion of  land  held  by  the  Crown,  its  oflBcers  or  agents,"  and 
that  the  proceedings  should  be  dismissed  at  the  suggestion  of 
the  Attorney-General.  This  depended  on  the  general  principle 
recognized  by  all  civilized  nations,  that  the  sovereign  is 
beyond  the  reach  of  process.  "  A  sovereign  cannot  hold 
property  except  by  agents.  To  maintain  an  action  for  the 
recovery  of  possession  of  property  held  by  the  sovereign 
through  his  agents,  not  claiming  any  title  or  right  in  them- 
selves, but  only  as  the  representatives  of  the  sovereign  and  on 
his  behalf,  is  to  maintain  an  action  to  recover  the  property 
against  the  sovereign ;  and  to  invade  such  possession  of  the 
agents  by  execution  or  other  judicial  process,  is  to  invade  the 
possession  of  the  sovereign  and  disregard  the  fundamental 
maxim  that  he  cannot  be  sued  without  his  consent."  ^  Such 
was  the  position  of  the  minority  of  the  court,  and  that  would, 
if  carried  out,  have  led  to  incongruous  results.  For  if  a  ques- 
tion like  that  which  arose  in  the  cases  orf  Entick  v,  Carring- 
ton^  and  Wilkes  v.  The  Earl  of  Halifax  were  argued  before 
a  tribunal  holding  such  views,  it  would  presumably  decide 
that  the  plaintiff  was  entitled  to  damages,  and  yet  they  could 
not  consistently  allow  him  to  maintain  detinue  for  his  books 
and  papers  in  the  face  of  an  intimation  from  the  Attorney- 
General  that  they  had  been  taken  and  were  held  for  the 
government.^ 

A  majority  of  the  court,  on  the  other  hand,  were  as  dis- 
tinctly in  favor  of  the  plaintiff's  right  to  recover  the  home- 
stead which  she  had  lost  through  craft  and  violence.  Her  title 
was  not  denied,  and  had  been  established  by  the  verdict  of  the 
jury ;  and  the  defence  was  that  certain  military  officers,  act- 
ing under  the  orders  of  the  President,  had  seized  the  estate 
and  converted  one  part  of  it  into  a  military  fort,  and  the  other 
into  a  cemetery.  It  was  not  pretended  that  the  President 
could  lawfully  give  such  a  command,  or  that  he  could  be  au- 

1  United  States  v.  Lee,  106  U.  S.  196,  244. 

2  19  State  Trials.    1029. 

«  See  Boyd  v.  United  States,  116  U.  S.  616.     See  ante,  p.  833. 


ILLEGALLY  HELD  FOR  GOVERNMENT.  891 

thorized  to  do  so  by  Congress,  except  in  the  exercise  of  the 
right  of  eminent  domain  and  on  due  payment  to  the  owner. 
The  defendants  stood  solely  upon  the  absolute  immunity  from 
judicial  inquiry  of  every  one  who  asserted  an  authority  from 
the  executive  branch  of  the  government,  however  clearly  it 
might  appear  that  the  order  was  invalid.  Not  only  was  no 
such  power  as  that  exercised  in  the  instance  under  considera- 
tion given  to  the  executive  or  the  legislature,  but  both  were 
absolutely  forbidden  to  deprive  any  one  of  life,  liberty,  or 
property  without  due  process  of  law,  or  to  take  private  prop- 
erty without  just  compensation.  These  provisions  for  the 
security  of  the  citizen  stood  in  the  Constitution  in  the  same 
connection  and  upon  the  same  ground,  and  both  were  intended 
to  be  enforced  by  the  judiciary  as  a  co-ordinate  department  of 
the  government.  No  man  in  this  country  is  so  high  that  he  is 
above  the  law.  No  officer  of  the  law  can  set  that  law  at  de- 
fiance with  impunity.  All  the  officers  of  the  law,  from  the 
highest  to  the  lowest,  are  creatures  of  the  law  and  bound  to 
obey  it.  Could  it  be  said,  in  the  face  of  all  this  and  the  ac- 
knowledged right  of  the  judiciary  to  declare  statutes  passed 
by  both  branches  of  Congress  and  approved  by  the  President 
to  be  unconstitutional,  that  the  courts  could  not  give  a  remedy 
when  the  citizen  was  deprived  of  his  property  by  force,  and 
his  estate  seized  and  converted  to  the  use  of  the  government 
without  process  of  law  and  without  compensation,  because 
the  order  came  from  the  President,  and  his  officers  were  in 
possession  ?  If  such  was  the  law  of  the  United  States,  it  sanc- 
tioned a  tyranny  which  had  no  existence  in  the  monarchies 
of  Europe  nor  in  any  government  which  had  a  just  claim  to 
a  well-regulated  liberty  and  the  protection  of  personal  rights. 
It  was  accordingly  established  by  a  train  of  decisions  that 
while  a  State  was  beyond  the  reach  of  process,  an  action  might 
well  be  maintained  against  the  officers  of  a  State  for  the  re- 
covery of  property  which  they  held  on  her  behalf,  though  the 
State  stood  behind  them  and  was  the  real  party  in  interest.^ 

1  Meigs  V.  McClung,  9  Craiich,  11 ;  Wilcox  v.  Jackson,  13  Peters,  498; 
Osborne  V.  The  Bank  of  the  United  States,  9  Wheaton,  738;  Grisar  u. 
McDowell,  6  Wallace,  363;  Brown  v.  Huger,  21  Howard,  305. 

VOL.  II. — 16 


892  MONSTRANS  AND  PETITION  DE  DROIT 

The  authorities  which  established  that  the  public  ships  and 
other  property  of  foreign  and  independent  nations  were  not 
subject  to  the  jurisdiction  of  the  courts,  did  not  apply,  because 
these  were  cases  which  might  involve  war  or  peace,  and  must 
be  primarily  dealt  with  by  the  departments  of  the  govern- 
ment which  have  the  power  to  adjust  them  by  negotiation,  or 
to  enforce  the  rights  of  its  citizens  by  the  sword.  In  such 
cases  the  judicial  department  of  the  government  both  in  the 
United  States  and  in  England  follows  the  action  of  the  po- 
litical branch,  and  will  not  embarrass  the  latter  by  assuming 
an  antagonistic  jurisdiction.^  It  followed  that  the  circuit 
court  was  competent  to  decide  all  the  issues  involved  be- 
tween the  parties  that  were  before  it,  and  the  judgment  must 
be  affirmed. 

We  may  readily  acquiesce  in  this  decision,  and  believe  that 
an  opposite  conclusion  would  have  been  a  long  stride  towards 
absolutism.  As  Professor  Dicey  observes,  "  the  views  of  pre- 
rogative maintained  by  the  Crown  lawyers  under  the  Tudors 
and  Stuarts  bear  a  marked  resemblance  to  the  legal  and 
administrative  ideas  which  at  the  present  day  support  the 
droit  administratif  of  France ;"  and  had  the  contention  of  the 
Attorney-General  prevailed,  such  ideas  would  have  been  in- 
grafted on  the  Constitution  of  the  United  States.^  If,  as  we 
may  infer,  a  like  defence  would  be  sustained  in  France,  it  is 
because  the  French  people  are  politically  and  collectively 
rather  than  individually  free,  and  a  Napoleon  who  subverts 
the  republic  which  he  has  sworn  to  maintain,  finds  the 
methods  of  despotism  ready  to  his  hand,  and  can  use  them 
arbitrarily  without  shocking  a  public  opinion  which  regards 
the  government  as  above  the  law.^ 

It  may  seem  strange  that  the  antiquated  and  cumbrous 

1  The  Exchange  v.  McFaddon,  7  Cranch,  116;  Luther  v.  Borden,  7 
Howard,  1;  State  of  Georgia  v.  Staunton,  6  Wallace,  50.  See  Vavassour 
r.  Krupp,  9  Ch.  Div.  351;  The  Parlement  Beige,  95  P.  D.  197;  1  Smith's 
Lead.  Cas.  (8  Am.  ed.)  1061,  1065,  notes  to  Mostyn  v.  Fabrigas.  See 
ante,  p.  140. 

2  Dicey,  Law  of  the  Constitution,  preface,  p.  6,  Lecture  V.,  p.  207. 

8  Dicey,  Law  of  the  Constitution,  186-207;  De  Tocqueville,  L'Ancien 
Regime  et  La  Revolution,  ch.  iv.  pp.  103,  109,  115.     See  ante,  p.  141. 


NOT  IN  FORCE  IN  THE  UNITED  STATES.  893 

monstrans  and  petition  de  droit  should  remain  on  the  statute- 
book  as  the  means  of  vindicating  the  title  of  the  subject  to 
property  held  by  the  Crown  :  but  we  may  be  sure  that  were 
the  grievance  real,  it  would  have  been  amended  hy  a  people 
who  are  of  all  men  the  most  jealous  of  their  rights.  There 
was  a  time  when  kingly  power  bore  hardly  on  the  rights  and 
liberties  of  the  subject ;  and  such  aggressions  became  frequent 
during  the  systematic  attempt  of  Charles  I.  to  establish  the 
supremacy  to  the  Throne.  It  was  strenuousl}^  contended  by 
the  Crown  law3^ers,  as  it  has  been  during  the  last  twenty 
years  in  the  United  States,  that  the  sovereign  is  beyond  the 
jurisdiction  of  the  courts,  and  that  compelling  his  servants  to 
surrender  things  or  persons  which  they  had  taken  at  his 
command  would  fetter  the  hands  of  the  government,  and 
might  at  critical  periods  endanger  the  public  safety.  The 
refusal  to  discharge  prisoners  under  a  warrant  from  the  Privy 
Council  or  issued  by  a  principal  Secretary  of  State  without  a 
definite  cause  assigned,  and  the  condemnation  of  Hampden 
for  declining  to  pay  ship-money,  were  the  result  of  this  doc- 
trine as  administered  by  dependent  judges  ;  and  but  for  it 
the  attempt  of  Charles  I.  to  seize  the  five  members  would 
have  been  as  insensate  as  it  was  ill-timed.^ 

The  quarrel  was  fought  out  in  the  Great  Rebellion ;  and 
the  passage  of  the  Habeas  Corpus  Act,  which,  in  defining  the 
jurisdiction  of  the  courts,  gave  Englishmen  an  immunity  from 
arbitrary  arrest  that  is  unknown  to  other  European  nations, 
was  among  the  indirect  results  of  the  lesson  taught  by  Crom- 
well. The  Revolution  of  1688  followed  ;  and  by  bringing  the 
king  under  the  control  of  Parliament,  gave  life,  liberty,  and 
property  the  security  which  they  now  enjoy. 

It  is  not,  therefore,  to  the  reigns  of  the  Tudors  or  Stuarts, 
or  even  to  such  of  the  despotic  doctrines  of  that  period  as 
may  still  survive,  that  we  should  look  for  analogies,  but  to 
the  principles  and  practice  of  the  English  Constitution  as 
finally  developed.  Such  a  spoliation  as  that  of  Arlington  is, 
and  for  two  hundred  years  has  been,  inconceivable  on  the 
part  of  a  monarch  who  must  act  through  his  ministers,  and 
1  See  ante,  p.  136;  Rushworth,  pp.  409,  509,  529,  545. 


894  DOCTRINE  THAT  THE  KING  CAN  DO 

may  not  set  his  sign-manual  to  any  order  which  they  do  not 
approve.  An  English  minister  who  desired  to  take  private 
property  for  a  public  use  without  compensation  would  bring 
a  bill  into  Parliament,  and  if  that  failed,  would  not  venture 
to  accomplish  the  object  through  an  illegal  mandate  from  the 
Crown.  The  restraint  is  political  rather  than  judicial,  and 
the  entire  machine  is  moved  by  the  House  of  Commons, 
which  is  beyond  the  reach  of  the  judiciary,  and  intolerant  of 
any  arbitrary  act  which  it  does  not  sanction. 

There  is  an  essential  difference  between  such  a  system,  and 
a  government  of  enumerated  powers  and  subject  to  prohibi- 
tions that  are  intended  not  as  enunciations  of  principles  which, 
though  ordinarily  obligatory,  may,  when  the  occasion  requires 
it,  be  laid  aside,  but  as  bulwarks  of  individual  rights,  and 
demarcations  keeping  the  States  and  the  General  Government 
to  their  respective  spheres,  and  preventing  the  conflict  of 
laws  that  might  otherwise  ensue.  Such  a  method  would  ob- 
viously be  impracticable  without  an  arbiter  authorized  to 
speak  for  all  parties  and  declare  which  interpretation  should 
prevail.  The  judiciary  was  consequently  erected  into  a 
co-ordinate,  and  for  some  purposes  supreme,  branch  of  the 
government,  which  acts  as  the  balance-wheel  of  the  most 
complex  system  ever  devised  by  the  wit  of  man.  To  hold 
that  the  federal  courts  cannot  compel  restitution  where  the 
wrong-doer  is  acting  under  an  illegal  mandate  from  the 
government,  is  to  render  them  impotent  where  it  is  essen- 
tial that  the}^  should  be  efficient,  and  put  what  Mr.  Dicey 
happily  calls  *'the  law  of  the  Constitution"  entirely  out  of 
joint.  There  is  the  more  need  for  judicial  intervention  be- 
cause the  departments  of  the  General  Government  are  not,  as 
in  England,  so  related  as  to  give  supremacy  to  one  and  render 
it  responsible  for  the  working  of  the  entire  machine.  The 
President  is  the  prime  minister  of  the  nation  rather  than  its 
monarch,  with  no  claim  to  the  infallibility  which  the  doctrine 
of  divine  right  ascribes  to  kings,  and  cannot,  when  life,  lib- 
erty, or  property  is  concerned,  ask  that  his  command  shall 
be  a  justification  for  a  breach  of  the  organic  law.  But  he  is 
at  the  same  time,  unlike  an  English  minister,  neither  depend- 


NO  WRONG  INAPPLICABLE  TO  THE  PRESIDENT.        895 

ent  on  nor  removable  by  the  legislature,  and  may  proceed 
autocratically  in  the  discharge  of  his  functions  as  chief  mag- 
istrate and  commander-in-chief,  with  no  political  restraints 
save  the  liabihty  to  impeachment,  which  need  scarcely  be  ap- 
prehended so  long  as  his  measures  are  in  accordance  with  the 
passions  and  interests  of  the  dominant  partj^  in  either  House 
of  Congress,  and  he  might,  as  the  judgment  in  the  United 
States  V.  Lee  indicates,  deal  arbitrarily  with  the  liberty  and 
property  of  individuals  if  his  orders  could  not  be  brought  to 
the  tests  of  law  and  justice  as  administered  by  the  courts. 

The  framers  of  the  Constitution  cannot,  therefore,  reason- 
ably be  supposed  to  have  intended  that  the  prohibitions  which 
they  laid  on  the  legislature  and  the  executive  should  remain 
inoperative  unless  Congress  saw  fit  to  legislate  for  the  purpose 
of  carrying  them  into  effect.  Such  an  interpretation  would 
subject  the  limitation  to  the  discretion  of  the  body  which  it 
was  intended  to  restrain.  Had  it  been  imagined  that  Congress 
could,  by  a  masterly  inactivity,  leave  the  way  open  for  the 
deprivation  which  the  Constitution  forbids,  the  right  of 
property  would  have  been  secured  by  some  provision  analo- 
gous-to  that  which  guarantees  the  privilege  of  the  habeas 
corpus. 

If  the  English  government  is  to  be  copied,  it  should  be 
viewed  as  a  whole,  instead  of  taking  a  single  leaf  as  a  sample 
of  the  rest.  It  does  not  merit  the  reproach  which,  had  the 
minority  opinion  in  United  States  v.  Lee  prevailed,  might 
have  been  levelled  against  the  United  States,  because  com- 
plaints of  the  extortionate  acts  of  the  officers  of  the  Crown 
seem  to  have  been  originally  heard  in  the  aula  regia  before 
the  assembled  barons ;  and  when  the  Constitution  took  form 
under  Edward  I.,  the  Monstrans  de  Droit  and  Petition  de 
Droit  became  remedies  which,  though  in  the  form  of  a 
supplication  to  the  king,  were  of  common  right,  and  could 
not  be  denied  consistently  with  the  nuUi  differemus,  nulli 
negahimus  justitiam  vel  rectum  of  Magna  Charta.^     Parlia- 

1  See  Tobin  v.  The  Qiieen.  16  C.  B.  (n.  s.)  309,  357;  Baron  de  Bode's 
Case,  8  Q.  B.  208,  273,  310;  Chisholm  v.  Georgia,  2  Dallas,  419,  442. 
"  In  England  it  is  easy  to  see  that  the  method  of  redressing  injuries 


896  GOODS  ILLEGALLY  DISTRAINED  BY 

ment  was,  moreover,  as  the  representative  of  the  well-born, 
cultured,  and  wealthy  classes,  sure  to  be  conservative  where 
vested  interests  were  concerned ;  and  the  entire  system  had 
the  equipoise  which  might  be  wanting  hei'C  but  for  the 
intervention  of  the  judiciary. 

The  well-meant  endeavor  of  the  minority  in  the  United 
States  V.  Lee  to  strengthen  the  hands  of  the  government 
tended  in  the  opposite  direction,  and  would,  had  it  prevailed, 
have  left  the  United  States  open  to  the  encroachments  of 
the  States,  because  a  State  is  not  only  entitled  to  the  benefit 
of  the  principle  that  a  sovereign  shall  not  be  sued  without 
his  consent,  but  secured  by  the  express  words  of  the  Eleventh 
Amendment  in  the  enjoyment  of  the  privilege.  In  Osborn 
V.  The  Bank  of  the  United  States,^  Chief-Justice  Marshall 

to  which  the  Crown  is  a  party  would  be  different  from  the  remedy- 
adopted  in  this  country  in  case  the  United  States  be  the  aggressor,  be- 
cause of  the  principle  underlying  the  English  Constitution  that  the  king 
can  do  no  wrong.  On  this  account,  although  it  would  not  do  to  issue 
mandatory  process  against  the  sovereign,  yet  th^  law,  being  unwilling 
that  private  rights  should  be  invaded  in  the  conduct  of  public  aifairs  and 
not  redressed,  has  furnished  the  subject  who  is  thus  injured  with  a  mode 
of  obtaining  redress  which  is  consistent  with  the  idea  of  kingly  prerog- 
ative. The  law  allows  him  by  petition  to  inform  the  king  of  the  nature 
of  his  grievance,  and  '  as  the  law  presumes  that  to  know  of  any  injury 
and  to  redress  it  are  inseparable  in  the  royal  breast,  it  then  issues,  as 
of  course,  in  the  king's  own  name,  his  orders  to  his  judges  to  do  justice 
to  the  party  aggrieved. '     3  Bl.  Com.  255. 

'*  This  valuable  privilege,  secured  to  the  subject  in  the  time  of  Edward 
I.,  is  now  crystallized  in  the  common  law  of  England.  As  the  prayer 
of  the  petition  is  grantable  ex  debito  Justitiae,  it  is  called  a  petition  of 
right,  and  is  a  judicial  proceeding,  to  be  tried  like  suits  between  subject 
and  subject.  ...  In  this  condition  of  the  law  regarding  the  Petition  of 
Eight,  which  is  conceded  to  aliens  as  well  as  subjects,  how  can  it  be 
contended  that  the  British  government  does  not  accord  to  citizens  of 
the  United  States  the  right  to  prosecute  claims  against  it  in  its  courts  ? 
It  is  of  no  consequence  that,  theoretically  speaking,  the  permission  of 
the  Crown  is  necessary  to  the  filing  of  the  petition,  because  it  is  the  duty 
of  the  king  to  grant  it,  and  the  right  of  the  subject  to  demand  it.  And 
we  find  that  it  is  never  refused,  except  in  very  extraordinary  cases;  and 
this  proves  nothing  against  the  existence  of  the  right."  United  States 
V.  O'Keefe,  11  Wallace,  183. 

1  9  Wheaton,  738. 


STATE   FOB  TAXES  MAY  BE  EECOVERED.  897 

gave  judgment  against  the  auditor  of  the  State  of  Ohio 
for  money  which  he  had  taken  forcibly  from  the  vaults  of  the 
National  Bank  on  account  of  a  tax  illegally  imposed  by  the 
State,  and  paid  over  to  the  State  treasurer ;  but  in  the 
United  States  v,  Lee,  Mr.  Justice  Gray,  speaking  for  himself 
and  the  other  dissenting  judges,  intimated  that  restitution 
could  not  have  been  enforced  but  for  the  accidental  circum- 
stance that  the  treasurer  received  the  money  with  notice, 
and  kept  it  apart  from  the  other  public  funds  in  his  pos- 
session, so  that  it  never  came  into  the  possession  of  the  State, 
and  might  be  specifically  recovered.^ 

Such  dicta^  sanctioned  by  such  names,  could  not  long  stand 
in  the  pages  of  the  United  States  Reports  without  being 
brought  to  the  test  of  experience;  and  when,  in  Greenhow 
V.  Poindexter,2  the  tax-collector  of  Virginia  distrained  the 
goods  of  the  plaintiff  below,  notwithstanding  a  tender  of  the 
coupons  which  the  State  had  contracted  to  receive  in  pay- 
ment, it  was  strenuously  contended  that  the  injured  party 
could  not  maintain  detinue,  because  the  suit  was,  if  not  against 
the  State,  for  the  recovery  of  property  held  by  her  officers  in 
her.  behalf.  The  question  came  before  the  Supreme  Court 
of  the  United  States,  and  was  decided  in  favor  of  the  plain- 
tiff on  grounds  which  would  suffer  from  abridgment.  After 
referring  to  a  numerous  line  of  decisions  in  which  redress 
had  been  afforded,  although  a  State  or  the  United  States 
were  parties  in  interest  or  indirectly  concerned,^  the  court 
observed :  — 

"The  ratio  decidendi  in  this  class  of  cases  is  very  plain.  A 
defendant  sued  as  a  wrong-doer,  who  seeks  to  substitute  the  State 
in  his  place,  or  to  justify  by  the  authority  of  the  State,  or  to  defend 
on  the  ground  that  the  State  has  adopted  his  act  and  exonerated 
him,  cannot  rest  on  the  bare  assertion  of  his  defence  ;  he  is  bound 

1  See  United  States  v.  Lee,  106  U.  S.  212,  244. 

2  114  U.  S.  285. 

*  See  Mitchell  v.  Harmony,  13  Howard,  115;  Bates  v.  Clark,  9  Cranch, 
11 ;  Wilcox  r.  Jackson,'  13  Peters,  498;  Osborn  v.  The  Bank  of  the  United 
States,  9  Wheaton,  738;  Brown  v.  Huger,  21  Howard,  305;  Grisar  u. 
McDowell,  6  Wallace,  363;  United  States  v.  Lee,  106  U.  S.  196. 


898  ACTS  DONE  UNDER  UNCONSTITUTIONAL 

to  establish  it.  The  State  is  a  political  corporate  body,  which  can 
act  only  through  agents,  and  can  command  only  by  laws.  It  is 
necessary,  therefore,  for  such  a  defendant,  in  order  to  complete  his 
defence,  to  produce  a  law  of  the  State  which  constitutes  his  com- 
mission as  its  agent,  and  a  warrant  for  his  act.  This  the  defendant 
in  the  present  case  undertook  to  do.  He  relied  on  the  act  of 
Jan.  26,  1882,  requiring  him  to  collect  taxes  in  gold,  silver.  United 
States  treasury  notes,  national  bank  currency,  and  nothing  else ; 
and  thus  forbidding  his  receipt  of  coupons  in  lieu  of  mone3\  That, 
it  is  true,  is  a  legislative  act  of  the  government  of  Virginia  ;  but  it 
is  not  a  law  of  the  State  of  Virginia.  The  State  has  passed  no  such 
law,  for  it  cannot ;  and  what  it  cannot  do,  it  certainly,  in  contem- 
plation of  law,  has  not  done.  The  Constitution  of  the  United 
States  and  its  own  contract,  both  irrepealable  by  anj^  act  on  its 
part,  are  the  law  of  Virginia ;  and  that  law  made  it  the  duty  of  the 
defendant  to  receive  the  coupons  tendered  in  payment  of  taxes,  and 
declared  every  step  to  enforce  the  tax  thereafter  taken  to  be  with- 
out warrant  of  law,  and  therefore  a  wrong.  He  stands,  then, 
stripped  of  his  official  character ;  and,  confessing  a  personal  viola- 
tion of  the  plaintiff's  rights  for  which  he  must  personally  answer, 
he  is  without  defence. 

''  No  better  illustration  of  this  principle  can  be  found  than  that 
which  is  furnished  by  the  case  of  the  United  States  v.  Lee,^  where 
it  was  applied  to  a  claim  made  on  behalf  of  the  National  Govern- 
ment. The  action  was  one  in  ejectment,  to  recover  possession  of 
lands  to  which  the  plaintiff  claimed  title.  The  defendants  were 
natural  persons,  whose  defence  was  that  they  were  in  possession  as 
officers  of  the  United  States  under  the  orders  of  the  government 
and  for  its  uses.  The  Attorney-General  called  this  aspect  of  the 
case  to  the  attention  of  the  court,  but  without  making  the  United 
States  a  party  defendant.  It  was  decided  by  this  court  that  to 
sustain  the  defence  and  to  defeat  the  plaintiff's  cause  of  action  it 
was  necessary  to  show  that  the  defendants  were  in  possession  under 
the  United  States  and  on  their  behalf  by  virtue  of  some  valid  author- 
ity. As  this  could  not  be  shown,  the  contrar}^  clearly  appearing, 
possession  of  lands  actually  in  use  as  a  national  cemeter}^  was 
adjudged  to  the  plaintiffs.  The  decision  in  that  case  was  rested 
largely  upon  the  authority  of  Osborn  v.  Bank  of  the  United  States,* 

1  106  U.  S.  196.  2  9  Wheaton,  738. 


LAW  AKE  TKESPASSES.  899 

which  was  a  suit  in  equity  against  an  officer  of  the  State  of  Ohio 
who  sought  to  enforce  one  of  her  statutes  which  was  in  violation 
of  rights  secured  to  the  bank  b}^  the  Constitution  of  the  United 
States.  The  defendants,  Osborn  and  others,  denied  the  jurisdic- 
tion of  the  court,  upon  the  ground  that  tlie  State  was  the  real  party 
in  interest  and  could  not  be  sued,  and  that  a  suit  against  her  offi- 
cers, who  were  executing  her  will,  was  in  violation  of  the  Eleventh 
Amendment  of  the  Constitution.  To  this  objection  Chief-Justice 
Marshall  replied :  '  If  the  State  of  Ohio  could  have  been  made  a 
party  defendant,  it  can  scarcely  be  denied  that  this  would  be  a 
strong  case  for  an  injunction.  The  objection  is  that,  as  the  real 
party  cannot  be  brought  before  the  court,  a  suit  cannot  be  sustained 
against  the  agents  of  that  party  ;  and  cases  have  been  cited  to  show 
that  a  court  of  chancery  will  not  make  a  decree  unless  all  those 
who  are  substantially  interested  be  made  parties  to  the  suit.  This 
is  certainly  true  where  it  is  in  the  power  of  the  plaintiff  to  make 
them  parties  ;  but  if  the  person  who  is  the  real  principal,  the  person 
who  is  the  true  source  of  the  mischief,  by  whose  power  and  for 
whose  advantage  it  is  done,  be  exempt  from  all  judicial  process,  it 
would  be  subversive  of  the  best-established  principles  to  say  that 
the  laws  could  not  afford  the  same  remedies  against  the  agent  em- 
ployed in  doing  the  wrong  which  they  would  afford  against  him 
could  his  principal  be  joined  in  the  suit.'  This  language,  it  may  be 
observed,  was  quoted  with  approval  in  United  States  v.  Lee.  The 
principle  which  it  enunciates  constitutes  the  very  foundation  upon 
which  the  decision  in  that  case  rested. 

''  In  the  discussion  of  such  questions  the  distinction  between 
the  government  of  a  State  and  the  State  itself  is  important,  and 
should  be  observed.  In  common  speech  and  common  apprehension 
they  are  usually  regarded  as  identical ;  and,  as  ordinarily,  the  acts 
of  the  government  are  the  acts  of  the  State,  because  within  the 
limits  of  its  delegation  of  power  the  government  of  the  State  is 
generally  confounded  with  the  State  itself,  and  often  the  former  is 
meant  when  the  latter  is  mentioned.  The  State  itself  is  an  ideal 
person,  intangible,  invisible,  immutable.  The  government  is  an 
agent,  and  within  the  sphere  of  the  agency  a  perfect  representa- 
tive ;  but  outside  of  that  it  is  a  lawless  usurpation.  The  Constitu- 
tion of  the  State  is  the  limit  of  the  authority  of  its  government, 
and  both  government'  and  Statfe  are  subject  to  the  supremacy  of  the 
Constitution  of  the  United  States  and  of  the  laws  made  in  pursu- 


900  AN  INDESTRUCTIBLE  UNION 

ance  thereof.  So  that  while  it  is  true  in  respect  to  the  government 
of  a  State,  as  was  said  in  Langford  v.  United  States,^  that  the 
maxim  '  that  the  king  can  do  no  wrong '  has  no  place  in  our 
S3'stem  of  government,  yet  it  is  also  true,  in  respect  to  the  State 
itself,  that  whatever  wrong  is  attempted  in  its  name  is  imputable 
to  its  government,  and  not  to  the  State,  for  as  it  can  speak  and  act 
onl}^  by  law,  whatever  it  does  say  and  do  must  be  lawful.  That 
which,  therefore,  is  unlawful  because  made  so  b}^  the  supreme  law, 
the  Constitution  of  the  United  States,  is  not  the  word  or  deed  of 
the  State,  but  is  the  mere  wrong  and  trespass  of  those  individual 
persons  who  falsely  speak  and  act  in  its  name.  It  was  upon  the 
ground  of  this  important  distinction  that  this  court  proceeded  in 
the  case  of  Texas  v.  White,^  when  it  adjudged  that  the  acts  of 
secession,  which  constituted  the  civil  war  of  1861,  were  the  unlaw- 
ful acts  of  usurping  State  governments,  and  not  the  acts  of  the 
States  themselves,  inasmuch  as  '  the  Constitution,  in  all  its  pro- 
visions, looks  to  an  indestructible  Union,  composed  of  indestructi- 
ble States  ; '  and  that  consequently  the  war  itself  was  not  a  war 
between  the  States,  nor  a  war  of  the  United  States  against  States, 
but  a  war  of  the  United  States  against  unlawful  and  usurping  gov- 
ernments, representing  not  the  States,  but  a  rebellion  against  the 
United  States.  This  is  in  substance  what  was  said  by  Chief-Jus- 
tice Chase,  delivering  the  opinion  of  the  court  in  Thorington  v. 
Smith,*  when  he  declared,  speaking  of  the  Confederate  Govern- 
ment, that  '  it  was  regarded  as  simply  the  militaiy  representative 
of  the  insurrection  against  the  authority  of  the  United  States.' 
The  same  distinction  was  declared  and  enforced  in  Williams  v, 
Bruffy/  and  in  Horn  v.  Lockhart,^  both  of  which  were  referred  to 
and  approved  in  Keith  v.  Clark.^ 

'*  This  distinction  is  essential  to  the  idea  of  constitutional  gov- 
ernment. To  deny  it  or  blot  it  out  obliterates  the  line  of  demarca- 
tion that  separates  constitutional  government  from  absolutism,  free 
self-government  based  on  the  sovereignty  of  the  people  from  that 
despotism,  whether  of  the  one  or  the  many,  which  enables  the 
agent  of  the  State  to  declare  and  decree  that  he  is  the  State ;  to 
say,  '  L'Etat,  c'est  moi.' 

**  Of  what  avail  are  written  constitutions  whose  bills  of  right  for 

1  101  U.  S.  341.  4  96  U.  S.  176,  192. 

2  7  Wallace,  700.  ^  17  Wallace,  570. 

8  8  Wallace,  1,  9.  «  97  U.  S.  454,  465. 


OF  INDESTRUCTIBLE  STATES.  901 

the  securit}^  of  individual  liberty  have  been  written  too  often  with 
the  blood  of  martyrs  shed  upon  the  battlefield  and  the  scaffold,  if 
their  limitations  and  restraints  upon  power  may  be  overpassed  with 
impunity  by  the  very  agencies  created  and  appointed  to  guard,  de- 
fend, and  enforce  them,  —  and  that,  too,  with  the  sacred  authority 
of  law,  not  only  compelling  obedience,  but  entitled  to  respect? 
And  how  else  can  these  principles  of  individual  liberty  and  right  be 
maintained  if,  when  violated,  the  judicial  tribunals  are  forbidden 
to  visit  penalties  upon  individual  offenders  who  are  the  instru- 
ments of  wrong  whenever  they  interpose  the  shield  of  State  ?  The 
doctrine  is  not  to  be  tolerated.  The  whole  frame  and  scheme  of 
the  political  institutions  of  this  country.  State  and  federal,  protest 
against  it.  Their  continued  existence  is  not  compatible  with  it. 
It  is  the  doctrine  of  absolutism,  pure,  simple,  and  naked,  and  of 
communism,  which  is  its  twin,  —  the  double  progeny  of  the  same 
evil  birth. 

"It  was  said  by  Chief- Justice  Chase,  speaking  for  the  whole 
court  in  Lane  County  u.  Oregon,^  that  'the  people  through  the 
Constitution  of  the  United  States  established  a  more  perfect  union, 
by  substituting  a  national  government,  acting  with  ample  power 
directly  upon  the  citizens,  instead  of  the  confederate  government, 
which  acted,  with  powers  greatly  restricted,  only  upon  the  States.' 
In  no  other  way  can  the  supremacy  of  that  Constitution  be  main- 
tained. It  creates  a  government  in  fact  as  well  as  in  name,  because 
its  Constitution  is  the  supreme  law  of  the  land,  '  anything  in  the 
Constitution  or  laws  of  any  State  to  the  contrary  notwithstanding,' 
and  its  authority-  is  enforced  by  its  power  to  regulate  and  govern 
the  conduct  of  individuals  even  where  its  prohibitions  are  laid  only 
upon  the  States  themselves.  The  mandate  of  the  State  affords  no 
justification  for  the  invasion  of  rights  secured  by  the  Constitution 
of  the  United  States,  otherwise  that  Constitution  would  not  be  the 
supreme  law  of  the  land.  When,  therefore,  an  individual  defendant 
pleads  a  statute  of  a  State  which  is  in  violation  of  the  Constitution 
of  the  United  States  as  his  authority  for  taking  or  holding  property 
to  which  the  citizen  asserts  title,  and  for  the  protection  or  posses- 
sion of  which  he  appeals  to  the  courts,  to  say  that  the  judicial  en- 
forcement of  the  supreme  law  of  the  land  as  between  the  individual 
parties  is  to  coerce  the  State,  ignores  the  fundamental  principles  on 
which  the  Constitution  rests  as  contrasted  with  the  articles  of  con- 

1  7  Wallace,  71,  76. 


902  THE   STATES   AND   THE   UNITED   STATES 

federation  which  it  displaced,  and  practically  makes  the  statutes  of 
the  States  the  supreme  law  of  the  land  within  their  respective 
limits."^ 

The  above  extract  has  been  given  at  length,  because  the 
force  of  the  argument  would  be  impaired  by  putting  it  in 
other  words,  and  the  principle  which  it  vindicates  is  essential 
to  the  security  of  the  citizen,  the  supremacy  of  the  General 
Government,  and  the  stability  of  the  several  States.  That  this 
estimate  is  not  exaggerated  will  be  evident  when  we  reflect 
that  the  doctrine  which  the  judgment  in  Poindexter  v, 
Greenhow  refutes,  leaves  the  way  open  for  the  deprivation 
which  the  Fourteenth  Amendment  forbids.  No  matter  how 
gross  the  spoliation,  even  when  the  statute  or  order  under 
which  it  is  committed  transcends  the  bounds  set  by  the  organic 
law,  and  although  the  property  which  is  illegally  taken  to- 
day is  found  to-morrow  in  the  hands  of  persons  who  while 
professedly  holding  it  for  a  public  purpose  on  behalf  of  the 
State,  in  fact  take  the  rents  and  profits  for  themselvQS,  the 

^  It  has  been  said  that  although  the  injured  party  cannot  maintain 
replevin,  detinue,  or  ejectment  for  goods  or  land  which  have  been  wrested 
from  him  under  color  of  an  authority  from  a  State  or  the  General  Govern- 
ment, an  adequate  measure  of  redress  may  be  found  in  a  suit  for  damages 
against  the  agents  by  whom  the  property  is  taken  or  detained,  or  he  may 
obtain  an  injunction.  Marye  v.  Parsons,  114  U.  S.  325.  Trespass  is  a  poor 
substitute  for  ejectment  where  land  is  concerned,  because  the  verdict  is 
limited  to  the  mesne  profits,  and  the  plaintiff  is  put  to  the  delay,  expense, 
and  inconvenience  of  bringing  successive  suits,  and  would  seem  to  be  as 
much  at  variance  with  the  doctrine  which  requires  a  petition  or  monstrans  de 
droit  to  be  filed  where  the  prerogative  is  involved,  as  an  ejectment  or  writ 
of  entry.  An  unanswerable  objection  is  that  such  a  remedy  is  illusory 
unless  the  defendant  has  property  which  can  be  taken  in  execution,  and 
may  where,  as  in  the  United  States  v.  Lee,  the  government  is  determined 
to  carry  out  its  design,  be  frustrated  by  choosing  agents  whose  poverty 
will  enable  them  to  defy  the  sheriff.  This  remark  does  not  apply  to  an 
injunction;  but  the  summary  intervention  of  a  chancellor  to  forbid  the 
President  or  the  officers  whom  he  employs  to  execute  an  act  of  Congress 
is  a  greater  stretch  of  judicial  power,  and  trenches  more  on  the  sovereignty 
of  the  State  than  does  a  judgment  for  the  plaintiff  in  an  action  brought  to 
test  the  title  of  the  government  to  the  property  wrongfully  acquired. 
See  ante,  pp.  129,  132. 


CAN  DO  NO  WKONG. 


903 


rightful  owner  cannot,  if  the  contention  for  the  defence  in 
Poindexter  v.  Greenhow  and  the  United  States  v,  Lee  be 
sound,  maintain  replevin  or  detinue  for  his  goods,  or  eject- 
ment for  his  land,  because  the  suit,  though  brought  to  evict 
the  wrong-doers,  is  in  legal  contemplation  against  the  sover- 
eignty by  which  they  are  sanctioned  or  employed,  and  con- 
trary to  the  Eleventh  Amendment. 

Carrying  the  same  contention  to  its  logical  consequences, 
we  should  be  led  to  a  still  more  objectionable  result.  Were  a 
State  to  improve  on  the  ex  post  facto  legislation  condemned  in 
Cummings  v.  State  of  Missouri,  b}^  enacting  that  all  persons 
who  declined  to  be  arrayed  under  an  oath  to  uphold  an  ordi- 
nance of  nullification  or  secession  should  be  deemed  guilty 
of  treason  and  their  property  confiscated,  the  recusants  could 
not  recover  their  land  or  goods  through  the  local  or  federal 
courts,  and  would  have  to  choose  between  submission  and 
armed  resistance.  If  they  adopted  the  latter  alternative, 
and  the  United  States  intervened  on  their  behalf,  the  contest 
which  ensued  would  not,  agreeably  to  the  same  construction 
logically  carried  out,  be  waged  for  the  purpose  of  subduing 
insurgents  who  had  usurped  an  authority  which  the  State 
could  not  confer,  and  to  restore  the  government  which  they 
had  virtually  deposed,  but  against  the  State  in  her  sover- 
eign capacity ;  and  if  she  were  worsted  in  the  struggle,  the 
case  would  come  within  the  rule  that  the  vanquished  is 
at  the  mercy  of  the  victor,  and  may  be  dealt  with  as  he 
thinks  proper.  Such  a  result,  fortunately,  cannot  take  place 
consistently  with  the  principles  of  constitutional  law  as  de- 
veloped in  England  and  applied  to  the  Constitution  of  the 
United  States.^ 

An  illegal  command  is  none  ;  and  it  is  established  under  the 
judgments  above  cited,  in  accordance  with  the  fundamental 
idea  of  our  system,  that  the  States  and  the  United  States, 
like  the  king,  can  do  no  wrong,  and  cannot  be  held  account- 
able for  acts  done  under  color  of  an  authority  which,  though 
conferred  in  terms  and  with  the  forms  of  law,  is  contrary  to 

1  See  ante,  pp.  24-30,  35-58. 


904  SECESSION  A   USURPATION. 

the  provisions  of  the  organic  law.^  As  was  finely  shown  in 
Texas  v.  White,  the  theory  of  the  Constitution  is  an  inde- 
structible union  of  indestructible  States;  and  the  mainte- 
nance of  the  States  and  the  preservation  of  their  governments 
are  as  much  within  its  scope  as  the  preservation  of  the  Union 
and  the  maintenance  of  the  national  government ;  and  the 
fabric  would  be  at  the  mercy  of  events  if  the  sins  of  the  legis- 
lature or  a  convention,  could  be  imputed  to  the  State  which 
they  affected  to  represent,  and  a  conflict  ensue,  with  the 
consequences  incident  to  a  war  among  sovereigns. 

1  Texas  v.  White,  7  Wallace,  700  ;    Thorington  y.   Smith,  8  Id.  1; 
Keith  V.  Clark,  97  U.  S.  454,  465. 


LECTURE  XLI. 

Whatever  Force  is  requisite  for  the  Protection  of  Individuals  or  the  Com- 
munity is  lawful.  —  The  Principle  applies  in  Peace,  but  has  a  Wider 
Scope  during  Insurrection  or  Invasion.  —  Arms  may  be  used  by 
the  Sheriff  in  dispersing  a  Mob,  and  the  Military  employed  in  Aid  of 
the  Civil  Power.  —  Soldiers  act  on  such  Occasions  as  Special  Constables, 
and  are  answerable  to  the  Law  in  Court  for  their  Conduct. —  Goods  may 
be  thrown  Overboard  during  a  Storm  to  preserve  the  Vessel,  or  a  House 
blown  up  to  arrest  a  Conflagration.  —  Destruction  of  Property  during 
War  to  prevent  it  from  falling  into  the  Hands  of  the  Enemy  rests  on  the 
same  Principle.  —  An  Unlawful  Command  is  not  a  Justification,  though 
coming  from  the  Chief  Magistrate,  a  Court,  General,  or  other  Military 
or  Civil  Superior.  —  A  Naval  Officer  or  Collector  is  answerable  for  the 
Illegal  Seizure  of  a  Vessel  under  Instructions  given  by  the  President.  — 
A  Recovery  in  Damages  may  be  had  against  a  General  or  the  Officer 
acting  at  his  Command  for  the  Seizure  of  Property  during  a  Campaign, 
unless  the  Need  was  urgent  or  the  Defendant  had  Probable  Cause  for 
so  regarding  it.  —  What  constitutes  such  a  Cause  is  an  Inference  of 
Law  from  the  Facts,  but  the  Facts  are  for  the  Jury. 

An  account  of  the  Constitution  of  the  United  States 
would  manifestly  be  incomplete  without  an  examination  of 
the  powers  which  belong  more  peculiarly  to  a  state  of  war. 
These  attained  dimensions  during  the  Great  Rebellion  which 
were  probably  not  anticipated  by  the  founders  of  the  Republic ; 
and  it  is  important  to  ascertain  the  principles  by  which  they 
are  governed,  and  to  what  their  growth  may  ultimately  tend. 
Such  an  investigation  does  not  necessarily  embrace  those 
powers  which,  although  designed  to  provide  for  war,  may 
legitimately  be  exercised  by  way  of  precaution  during  peace. 
Congress  may,  for  instance,  raise  and  support  armies,  and 
make  rules  for  the  government  of  the  land  and  naval  forces 
of  the  United  States  in  the  discharge  of  their  ordinary  func- 
tions, whether  war  does  or  does  not  exist.     And  a  similar 


906  WHATEVER   FORCE  IS   REQUISITE 

remark  may  be  made  with  reference  to  the  larger  part  of  the 
powers  of  the  President  as  commander-in-chief. 

War  nevertheless  requires  the  application  of  doctrines 
which,  though  not  abnormal,  have  but  a  limited  application 
in  time  of  peace,  and  is  another  name  for  the  use  of  force 
under  circumstances  requiring  instant  action.  Without  in- 
troducing a  new  principle,  it  enlarges  the  operation  of  prin- 
ciples which  are  inherent  in  the  common  law,  and  may  be 
summed  up  under  the  head  of  national  and  personal  self- 
defence,  or  that  whatever  force  is  requisite  for  the  protec- 
tion of  individuals  or  the  community  is  lawful.^ 

When  a  riot  assumes  such  proportions  that  it  cannot  be 
quelled  by  ordinary  means,  and  threatens  irreparable  injury  to 
life  or  property,  the  sheriff  may  call  forth  the  posse  comitatus 
and  exercise  an  authority  as  their  chief  which  can  hardly  be 
distinguished  from  that  of  a  general  engaged  in  repelling  a 
foreign  enemy  or  subduing  a  revolt.  Arms  may  be  used  as 
in  battle  to  bear  down  resistance ;  and  if  loss  of  life  ensues, 
the  circumstances  will  bfe  a  justification.  The  measure  does 
not,  however,  cease  to  be  civil,  or  fall  beyond  the  rules 
which  apply  when  a  house  is  entered  in  the  night  by  bur- 
glars, or  a  traveller  shoots  a  highwayman  who  demands  his 
money.  Nor  will  it  change  its  character  because  the  military 
are  called  in  and  the  sheriff  delegates  his  authority  to  the 
commanding  officer.  As  Lord  Mansfield  showed  in  the  de- 
bate on  the  Lord  George  Gordon  riots  in  1T80,  soldiers  are 
subject  to  the  duties  and  liabilities  of  citizens  although  they 
wear  a  uniform,  and  may,  like  other  individuals,  act  as  special 
constables  or  of  their  own  motion  for  the  suppression  of  a 
mob,  and  if  the  staff  does  not  suffice  employ  the  sword.  The 
intervention  of  the  military  does  not  introduce  martial  law  in 
the  sense  in  which  the  term  is  understood  under  despotic 
governments,  and  even  by  some  distinguished  jurists,  be- 
cause, agreeably  to  the  same  great  magistrate  and  the  settled 
practice  in  England  and  the  United  States,  they  are  liable  to 
be  tried  and  punished  for  any  excess  or  abuse  of  power,  not 

1  See  the  Case  of  the  King's  Prerogative  in  Saltpetre,  12  Reports, 
12. 


IS   ALSO  LAWFUL.  907 

by  the  martial  code,  but  under  the  common  and  statute 
law.^ 

A  riot  is  not  the  only  instance  where  necessity  may  confer 
powers  that  are  unknown  to  the  ordinary  course  of  law  ;  an- 
other may  arise  out  of  a  conflagration.  Ordinarily'a  man's 
dwelling  is  sacred  to  himself  and  his  family,  —  a  retreat  which 
none  can  violate  without  the  express  mandate  of  the  law. 
And  yet  it  is  every  day's  experience  that  when  a  fire  occurs 
in  a  town  or  village  the  neighbors  may  enter  without  con- 
sulting the  owner  to  extinguish  the  flames.^  The  axe  may 
be  applied  to  the  roof  or  walls,  and  part  of  the  premises 
demolished  to  save  the  rest  or  the  adjacent  property.  And  so 
far  does  this  go  that  if  the  flames  attain  such  a  height  that 
they  cannot  be  arrested  by  ordinary  means,  the  inmates  of  a 
house  which  is  not  on  fire  may  be  summarily  ejected  and  the 
building  blown  up  with  gunpowder  or  destroj^ed  by  any  other 
convenient  means.^ 

Such  cases  depend  on  the  right  of  the  Commonwealth  as 
an  organic  whole,  and  of  individuals  acting  on  her  behalf,  to 
do  whatever  is  indispensable  for  the  protection  of  life,  liberty, 

1  21  Parliamentary  History,  695;  Adolphus'  History  of  England,  iii. 
297;  7  State  Trials,  47;  Rex  y.  Pinney,  5  Car.  &  Payne,  262;  The  Case 
of  Arms,  Popham,  121. 

"  Our  soldiers  are  the  king's  subjects  as  well  as  other  men,  and  it  is 
well  known  that  most  of  our  magistrates,  especially  those  concerned  in 
the  execution  of  the  law,  have  a  power  to  call  on  any  of  the  king's  sub- 
jects they  can  see  to  their  assistance  for  preserving  the  peace  or  for  en- 
abling them  to  execute  any  of  the  king's  writs ;  and  in  case  of  any  such 
call,  we  likewise  know  that  every  one  of  the  king's  subjects  is  obliged  to 
obey.  .  .  .  Why,  then,  may  not  a  civil  magistrate  call  the  soldiers  to  his 
assistance  as  well  as  other  men?  .  .  .  Therefore,  while  the  king's 
troops  act  under  the  direction  of  the  civil  magistrate,  and  as  his  assist- 
ants only,  we  shall  be  as  much  under  civil  government  as  if  we  had  no 
such  troops."  Lord  Hardwicke's  speech  in  the  Lords,  Feb.  10,  1737  (9 
Pari.  History,  1297). 

2  The  King's  Prerogative  in  Saltpetre,  12  Reports,  12;  Mouse's  Case, 
Id.  63. 

*  Case  of  the  Prerogative,  12  Coke,  13;  Hale  v.  Lawrence,  1  Zabriskie, 
714.  See  Philadelphia  ir.  Scott,  81  Pa.  80,  85 ;  The  Mayor  of  New  York 
V.  Lord,  17  Wend.  285 ;  18  Id.  12 ;  The  Governor,  etc.,  v.  Monteith,  4  Term 
Reports,  794.     See  also  ante,  p.  761. 

VOL.  II.  — 17 


908  NECESSITY  AS    A  JUSTIFICATION 

and  property,  which  is  known  in  peace  as  the  police  power, 
and  designated  in  war  as  martial  law.^  The  right  to  act 
under  such  circumstances  is  not  confined  to  public  officers  or 
persons  acting  under  an  authority  conferred  by  statute  ;  and 

1  See  ante,  pp.  761,  784.  That  such  a  principle  exists,  and  may  justify 
acts  which  would  otherwise  be  wrongful,  is  shown  by  the  following  citation 
from  the  King's  Prerogative  in  Saltpetre,  12  Coke,  13:  "  Although  the 
king  cannot  take  the  trees  of  the  subject  growing  upon  his  freehold  and 
inheritance,  as  it  was  now  lately  resolved  by  us  the  justices  of  England; 
and  although  he  cannot  take  gravel  in  the  inheritance  of  the  subject  for 
reparation  of  his  houses,  as  the  book  is  in  11  Hen.  IV.  28,  —  yet  it  was 
resolved  that  he  may  dig  for  saltpetre  for  this  that  the  ministers  of  the 
king  who  dig  for  saltpetre  are  bound  to  leave  the  inheritance  of  the  sub- 
ject in  so  good  plight  as  they  found  it,  which  they  cannot  do  if  they 
might  cut  the  timber  growing,  which  would  tend  to  the  disinheritance  of 
the  subject,  which  the  king  by  prerogative  cannot  do,  for  the  king  (as  it 
is  said  in  our  books)  cannot  do  any  wrong.  And  as  to  the  case  of 
gravel,  for  reparation  of  the  houses  of  the  king,  it  is  not  to  be  com- 
pared to  this  case ;  for  the  case  of  saltpetre  extends  to  the  defence  of  the 
whole  realm,  in  which  every  subject  hath  benefit.  But  so  it  is  not  in  the 
case  of  the  reparations  of  the  king's  houses;  and  therefore  it  is  agreed  in 
13  Hen.  IV.  and  other  books  that  the  king  may  charge  the  subject  for  murage 
of  a  town  to  which  the  subjects  were  charged  in  the  time  of  insurrection 
or  war  for  safety,  and  so  for  pontage,  for  this  that  he  which  is  charged 
hath  benefit  by  it;  but  the  king  cannot  charge  the  subject  for  the  making 
of  a  wall  about  his  own  house,  or  for  to  make  a  bridge  to  come  to  his 
house,  for  that  does  not  extend  to  public  benefit.  But  when  enemies  come 
against  the  realm  to  the  sea-coast,  it  is  lawful  to  come  upon  my  land  ad- 
joining to  the  same  coast  to  make  trenches  or  bulwarks  for  the  defence  of 
the  realm,  for  every  subject  hath  benefit  by  it,  and  therefore  by  the  com- 
mon law  every  man  may  come  upon  my  land  for  the  defence  of  the  realm, 
and  in  such  case  on  such  extremity  they  may  dig  for  gravel  for  the  mak- 
ing of  bulwarks ;  for  this  is  for  the  public,  and  every  one  hath  benefit  by 
it.  But  after  the  danger  was  over,  the  trenches  and  bulwarks  ought  to  be 
removed,  so  that  the  owner  shall  not  have  prejudice  in  his  inheritance. 
And  for  the  commonwealth  a  man  shall  suffer  damage;  as  for  saving  of  a 
city  or  town  a  house  shall  be  plucked  down  if  the  next  be  on  fire;  and  the 
suburbs  of  a  city  in  time  of  war  for  the  common  safety  shall  be  plucked 
down;  and  a  thing  for  the  commonwealth  every  man  may  do  without 
being  liable  to  an  action,  as  it  is  said  3  Hen.  VIII.  fol.  xv;  and  in  this 
case  the  rule  is  true,  Princeps  et  repuUica  ex  justa  causa  possunt  rem 
meam  auferre.  It  was  resolved  that  this  making  of  saltpetre  is  a  purvey- 
ance of  it  for  the  making  of  gunpowder  for  the  necessary  defence  of  and 
safety  of  the  realm." 


IN  PEACE  AND  WAR.  909 

private  persons  may,  when  the  need  is  urgent,  do  of  their 
own  motion  what  self-defence  or  the  preservation  of  the  lives 
and  property  of  others  requires.^  In  Mouse's  Case,  which 
was  trespass  de  bonis  asportatis  for  a  casket  containing  <£114 
in  gold,  the  ferryman  at  Gravesend  took  forty-seven  passen- 
gers in  his  barge,  of  whom  Mouse  was  one  ;  "  and  the  barge 
being  upon  the  water,  a  great  tempest  happened  and  a  strong 
wind,  so  that  the  barge  and  all  the  passengers  were  in  danger 
to  be  drowned  if  a  hogshead  of  wine  and  other  ponderous 
things  were  not  cast  out  for  the  safeguard  of  the  lives  of  the 
men.  It  was  resolved  per  totam  curiam  that  in  case  of  neces- 
sity, for  the  saving  of  the  lives  of  the  passengers,  it  was  lawful 
to  the  defendant,  being  a  passenger,  to  cast  the  casket  of  the 
plaintiff  out  of  the  barge,  with  the  other  things  in  it,  for  quod 
quis  oh  tutelam  corporis  sui  fecerit^  Jure  idfecisse  videturJ*^ 

For  like  reasons  it  is  a  sufficient  answer  to  an  action  of 
trespass  against  a  private  citizen  for  arresting  without  a  war- 
rant, that  a  felony  was  committed  and  that  he  had  reasonable 
cause  to  believe  that  the  plaintiff  was  the  criminal ;  and  if  this 
is  proved,  the  suit  will  fail,  although  the  charge  was  un- 
founded.2  So  far  does  the  rule  extend,  that  persons  who 
witness  the  commission  of  a  crime  may  break  open  the  doors 
of  a  house  in  which  the  offender  takes  refuge,  and  use  as 
much  force  as  is  requisite  to  apprehend  him,  without  being 
answerable  though  he  is  unavoidably  killed  in  the  affray. 
The  right  nevertheless  stands  on  the  ground  of  necessity ; 
and  it  should  appear  that  the  pursuit  was  immediate,  and 
that  there  was  not  time  to  lay  the  case  before  a  magistrate 
and  procure  a  warrant.  It  is  also  said  to  be  essential  that  he 
"  who  hath  the  suspicion  should  make  the  arrest,  and  not 
another,  though  at  his  command."  ^ 

1  Meeker  v.  Van  Rensselaer,  15  Wend.  397;  Wynehamer  v.  The  Peo- 
ple, 13  N.  Y.  378,  401,  439 ;  ante,  p.  762;  Rex  v.  Pinney,  5  Car.  &  Payne ; 
Mouse's  Case,  12  Coke,  63. 

2  Sir  Anthony  Ashley's  Case,  12  Reports,  92;  Wakely  v.  Hart,  6  Bin- 
ney,  316;  Brooks  v.  The  Commonwealth,  61  Pa.  353,  358;  Holly  v.  Mix, 
3  Wend.  350,  353.     See'ante,  p.  761. 

*  Such  an  arbitrary  power  cannot  safely  be  intrusted  to  one  who  is  not 
accountable  for  its  abuse.    Accordingly,  Chief- Justice  Markham  is  said  to 


910  NECESSITY  AS  A  JUSTIFICATION 

The  principle  may,  as  the  foregoing  citations  denote,  be 
called  into  greater  activity  on  the  advent  of  war,  which 
involves  exigencies  that  cannot  be  met  by  ordinary  means, 
and  may  render  it  necessary  to  subordinate  the  rights  of 
individuals  to  the  duty  of  guarding  against  a  peril  which 
menaces  all.^  It  was  applied  in  the  case  of  Sparhawk  v, 
Respublica,2  on  an  appeal  from  the  decision  of  the  Comp- 
troller-General denying  the  plaintiff  compensation  for  the 
loss  of  certain  barrels  of  flour  which  had  been  taken  from 
him  in  1777  under  a  resolution  of  Congress  and  by  order  of 
the  Board  of  War  of  Pennsylvania,  to  prevent  them  from  fall- 
ing into  the  hands  of  the  British  troops,  who  were  then  ap- 
proaching Philadelphia.  The  flour  having  been  destroyed  or 
carried  off  subsequently  by  the  enemy,  the  question  arose 
whether  the  owner  was  entitled  to  compensation  from  the 
State. 

McKean,  C.-J.,  said,  in  giving  judgment,  that  the  court 
would  be  governed  in  the  determination  of  the  cause  by  rea- 
son, by  the  law  of  nations,  and  by  analogous  precedents.  The 
transaction  happened  flagrante  hello ;  and  many  things  are 
lawful  in  that  season  which  would  not  be  permitted  in  a  time 
of  peace.  Unless  the  seizure  could  be  justified  by  this  distinc- 
tion, it  was  clearly  a  trespass,  rendering  the  defendant  liable 
in  damages.  It  was,  however,  a  rule  that  it  is  better  to  suffer 
a  private  mischief  than  a  public  inconvenience,  and  necessity 
had  rights  which  were  recognized  by  the  law.     If  a  road  was 

have  told  Edward  IV.  that  "  the  king  cannot  arrest  a  man  for  suspicion 
of  treason,  as  others  of  his  lieges  may,  for  that  if  it  be  a  wrong,  the  party 
grieved  can  have  no  remedy."  Prohibitions  del  Roy,  12  Reports,  63,  64; 
2  Institutes,  186;  1  Rushworth,  508.  In  other  words,  the  king  must  not 
act  in  person,  but  through  some  one  who  will  be  answerable  criminally  or 
in  damages.  The  warning  is  the  more  remarkable  because  addressed  to 
a  monarch  who  had  vindicated  his  title  by  the  sword;  and  the  principle 
would  seem  applicable  to  arrests  by  the  President,  or  in  pursuance  of  a 
command  given  in  his  civil  capacity,  and  not  on  the  ground  of  the  neces- 
sity which  may  justify  a  recourse  to  martial  law,  because  he,  like  an  Eng- 
lish king,  is  beyond  the  reach  of  process  during  his  term  of  office. 

1  See  The  King's  Prerogative  in  Saltpetre,  12  Coke,  13.  See  ante,  pp. 
764,  908. 

^  1  Dallas,  357. 


m  PEACE  AND  WAR.  911 

out  of  repair,  a  passenger  might  lawfully  go  through  a  private 
inclosure.^  So,  if  a  man  was  assaulted,  he  might  fly  through 
another's  close.^  In  time  of  war  bulwarks  might  be  built  on 
private  grounds ;  ^  and  the  reason  assigned  was  peculiarly  ap- 
plicable to  the  case  in  hand,  —  that  the  act  complained  of  was 
for  the  public  safety.'*  So,  also,  every  man  might,  of  common 
right,  justify  the  going  of  his  servants  or  horses  upon  the  banks 
of  navigable  rivers  for  towing  barges,  etc.,  to  whomsoever  the 
right  of  the  soil  belonged.^  And  as  the  safety  of  the  people 
was  a  law  above  all  others,  it  was  lawful  to  part  affrayers  in  the 
house  of  another  man.^  Houses  might  be  razed  to  prevent 
the  spreading  of  fire  for  the  public  good.''  There  was  indeed 
a  memorable  instance  of  folly  recorded  in  the  third  volume  of 
Clarendon's  History,  where  it  was  mentioned  that  the  Lord 
Mayor  of  London,  in  1666,  when  that  city  was  on  fire,  would 
not  give  directions  for  or  consent  to  the  pulling  down  of  forty 
wooden  houses,  or  to  removing  the  furniture,  etc.,  of  the  law- 
yers of  the  Temple,  then  on  a  circuit,  for  fear  he  should  be 
liable  for  a  trespass,  and  in  consequence  half  that  great  city 
was  burned.  The  court  was  clearly  of  opinion  that  Congress 
might  lawfully  direct  the  removal  of  any  articles  that  were 
necessary  to  the  maintenance  of  the  Continental  army  or  use- 
ful to  the  enemy  and  in  danger  of  falling  into  their  hands, 
for  they  were  vested  with  the  powers  of  peace  and  war,  to 
which  this  was  a  natural  and  necessary  incident.  And  the 
act  being  a  lawful  one,  there  was  nothing  in  the  manner  of 
it  which  entitled  the  plaintiff  to  compensation  for  the  conse- 
quent loss.  This  decision  was  followed  in  Bronson  v,  Wool- 
sey,^  and  an  officer  of  the  navy  held  not  to  be  answerable  for 
sinking  a  vessel  which  had  been  hired  to  the  United  States  as 
a  transport,  and  placed  under  his  command,  because  the  act 
was  necessary  to  prevent  the  munitions  of  war  on  board 
from  falling  into  the  hands  of  the  enemy. 

1  2  Bl.  Com.  36.  2  5  Bac.  Abr.  173. 

*  Dyer,  8 ;  Brooks's  Abridgment  (Trespass),  213;  5  Bac.  Abr.  175. 

*  20  Vin.  Abr.  (Trespass),  B,  a,  sect.  4,  fo.  476. 
«  1  Lord  Ray.  725. 

6  Reyl,  46;  5  Bac.  Abr.  177;  20  Viu.  Abr.  fo.  407,  sect.  14. 
'  Dyer,  36.  8  17  Johnson,  46. 


912  AN  ILLEGAL  COMMAND   IS   NOT 

The  right  to  destroy  under  such  circumstances  has  been 
recognized  or  upheld  by  the  Supreme  Court  of  the  United 
States  in  various  instances,^  and  is,  in  fact,  simply  an  extension 
of  the  police  power  to  commit  infected  goods  to  the  flames.^ 
Conversely,  private  property  may,  when  the  occasion  im- 
peratively requires  it,  be  taken  from  the  owner  for  the  sup- 
port of  the  troops  or  in  aid  of  a  warlike  operation  that  must 
otherwise  fail.^ 

These  instances  afford  a  sufficient  proof  that  necessity  has 
rights  which  the  law  recognizes  in  peace  as  well  as  in  war,  the 
difference  being  that  a  principle  which  is  of  rare  and  excep- 
tional operation  in  seasons  of  tranquillity  may  under  the 
pressure  of  hostilities  become  a  dominant  rule.* 

It  is  equally  plain  that  he  who,  either  in  war  or  peace, 
relies  on  the  warrant  of  necessity  for  going  beyond  the  boun- 
daries which  ordinarily  separate  right  from  wrong,  takes  the 
risk  on  himself  of  proving  that  the  circumstances  were  such 
as  to  justify  his  conduct.  If  he  succeeds  in  doing  this,  the 
defence  is  complete  ;  if  he  fails,  he  may  be  civilly  or  even 
criminally  liable,  notwithstanding  the  goodness  of  his  inten- 
tions or  the  command  of  a  superior  whom  he  could  not  safely 
disobey.^  Such  is  the  rule  of  the  common  law  as  adminis- 
tered in  England  agreeably  to  all  the  books  in  which  the 
question  has  been  considered  ;  ^  and  it  has  been  repeatedly 
applied  in  the  United  States.'' 

There  is  the  more  reason  for  holding  individuals  answer- 
able  for   executing   an   illegal   governmental   order   or  un- 

1  Mitchell  V.  Harmony,  13  Howard,  115;  Ford  v.  Surget,  97  U.  S. 
605.     See  ante,  p.  764. 

2  See  ante,  pp.  761,  763. 

8  Mitchell  V.  Harmony,  13  Howard,  115. 

*  Dicey,  Law  of  the  Constitution,  Lecture  VII.  pp.  296,  300. 

6  2  Institutes,  186;  Hale,  P.  C.  43;  Tobin  v.  The  Queen,  16  C.  B. 
(N.  s.)  310,  354. 

6  Rogers  v.  Rajendro  Dult,  13  Moore  P.  C.  236;  Mostyn  v.  Fabrigas, 
Cowper,  180;  Dicey,  Law  of  the  Constitution,  298,  311.    See  ante,  p.  763. 

'  The  Commonwealth  v.  Blodgett,  12  Metcalf,  56;  Mitchell  v.  Har- 
mony, 13  Howard,  115,  135,  139;  Poindexter  v.  Greenhow,  114  U.  S. 
270,  287. 


A  JUSTIFICATION.  913 

constitutional  statute  because  the  government  cannot  be 
sued,  and  if  an  action  did  not  lie  against  the  agent,  there 
would  be  no  redress.^  As  was  observed  in  Rogers  v.  Ra- 
jendro  Dult,  "  the  civil  irresponsibility  of  the  supreme  power 
for  tortious  acts  could  not  be  maintained  with  any  show 
of  justice  if  its  agents  were  not  responsible  for  them.  In 
such  cases  the  government  is  bound  to  indemnify  its  agent, 
and  it  is  hard  on  such  agent  if  this  obligation  is  not  satis- 
fied ;  but  the  right  to  compensation  of  the  party  injured  is 
paramount." 

In  Kilbourn  v.  Thompson  ^  an  action  was  accordingly  main- 
tained against  the  Sergeant-at-Arms  for  arresting  the  plaintiff 
under  a  resolution  of  the  House  of  Representatives,  although 
the  members  were  not  answerable  collectively  or  as  indivi- 
duals for  advocating  or  ordering  the  arrest,  and  the  loss  inci- 
dent to  the  execution  of  their  command  fell  exclusively  on 
him.  The  rule  is  essential  to  the  successful  working  of  a 
federal  system  which  brings  sovereign  and  co-ordinate  powers 
face  to  face,  and  gives  each  a  specific  function.  All  must  be 
kept  in  their  respective  places,  but  none  are  within  the  reach 
of  process  ;  and  confusion  would  ensue  if  their  agents  were 
free  from  the  restraints  which  cannot  be  laid  directly  on  the 
principals. 

A  trespasser  cannot,  therefore,  plead  an  illegal  command  of 
a  State,  of  the  United  States,  or  of  any  branch  or  department 
of  the  government,  as  a  reason  why  he  should  not  be  answer- 
able before  a  jury  for  such  damages  as  they  may  think  proper 
to  give.  The  rule  applies  to  acts  done  by  the  military  ser- 
vants of  the  United  States  as  well  as  the  civil,  and  has  been 
vindicated  in  cases  growing  out  of  the  orders  of  the  Presi- 
dent, of  the  House  of  Representatives,^  and  of  commanding 
officers  in  time  of  war,  and  applies  although  the  authority 

1  Rogers  v.  Rajendro  Dult,  13  Moore  P.  C.  236;  Tobin  v.  The  Queen, 
16  C.  B.  (N.  8.)  310,  361;  Poindexter  v.  Greenhow,  114  U.  S.  270,  282; 
United  States  i\  Lee,  106  Id.  196. 

2  103  U.  S.  168.     See  ante,  p.  851. 

«  United  States  v.  Lee,  106  U.  S.  196 ;  Kilbourn  v.  Thompson,  103 
U  S.  168.     See  ante,  p.  888. 


914  A  SOLDIER  MAY  BE  ANSWERABLE 

set  up  as  a  defence  is  the  decree  or  writ  of  a  court  of  justice 
or  an  unconstitutional  statute.^ 

"  The  only  remaining  question,"  said  Washington,  J.,  in 
United  States  v.  Jones,^  "  is  that  the  prisoner  ought  to  be 
presumed  to  have  acted  under  the  orders  of  his  superior  offi- 
cer, whicli  it  was  his  duty  to  obey.  This  doctrine,  equally 
alarming  and  unfounded,  underwent  an  examination  and  was 
decided  in  this  court  in  the  case  of  General  Bright.  It  is 
repugnant  to  reason  and  the  positive  law  of  the  land.  No 
military  or  civil  officer  can  command  an  inferior  to  violate 
the  laws  of  his  country,  nor  will  such  command  excuse, 
much  less  justify,  the  act.  Can  it  be  for  a  moment  pretended 
that  a  general  of  an  army  or  a  commander  of  a  ship  of  war 
can  order  one  of  his  men  to  commit  murder  or  felony  ? 
Certainly  not."  ^ 

The  orders  of  the  President,  whether  acting  in  his  capacity 
as  commander-in-chief  or  as  chief  magistrate,  stand  on  the 
same  plane  in  this  regard  as  those  given  by  the  king,  a  sheriff, 
justice  of  the  peace,  colonel,  or  parish  constable,  and  come 
under  the  general  rule  that  the  command  of  a  superior  will 
not  justify  the  commission  of  an  act  which  he  cannot  legally 
authorize  the  subordinate  to  perform.* 

1  Poindexter  v.  Greenhow,  114  U.  S.  270;  Brown  v.  Compton,  8  Term 
Rep.  424;  Campbell  v.  Webb,  11  Md.  471;  Stetson  v.  Packer,  7  Gushing, 
562;  Cobb  v.  Cooper,  15  Johnson,  152;  Carratt  v.  Morley,  1  Q.  B.  18; 
The  Case  of  the  Marshalsea,  10  Coke,  68,  76;  Williamson's  Case,  26  Pa.  9, 
18;  1  Smith's  Lead.  Gas.  (8th  Am.  ed.)  1111.    See  ante,  pp.  24,  30,  35,  58. 

2  3  W.  C.  R.  209,  220. 

*  In  United  States  v.  Carr,  1  Wood,  484,  the  jury  were  instructed 
that  "  the  killing  of  a  soldier  by  the  sergeant  of  the  guard  or  in  obedi- 
ence to  his  command  may  be  as  clearly  murder  as  the  killing  of  one 
citizen  by  another.  A  soldier  is  bound  to  obey  only  the  lawful  orders  of 
his  superiors.  If  he  receives  an  order  to  do  an  unlawful  act,  he  is  bound 
neither  by  his  duty  nor  his  oath  to  do  it.  So  far  from  such  an  order 
being  a  justification,  it  makes  the  party  giving  the  order  an  accomplice 
in  the  crime.  For  instance,  an  order  from  an  officer  to  a  soldier  to  shoot 
another  for  disrespectful  words  merely,  would,  if  obeyed,  be  murder,  both 
in  the  officer  and  soldier." 

*  Little  V.  Barreme,  2  Cranch,  170,  178;  Gelston  v.  Hoyt,  3  Wheaton, 
248;  Commonwealth  v.  Blodgett,  12  Metcalf,  56,  84;  United  States  v. 


FOR  OBEYING  HIS  OFFICER.  915 

In  Little  v.  Barreme  the  action  was  trespass  against  an 
officer  of  the  navy  for  the  seizure  of  the  plaintiffs  vessel  in 
accordance  with  instructions  which  were  given  by  the  Presi- 
dent in  consequence  of  a  misinterpretation  of  the  act  of 
Feb.  9,  1799 ;  and  it  was  held  that  the  commander  of  a  ship 
of  war  acts  at  his  peril  in  obeying  orders,  and  if  they  are 
not  warranted  by  the  law,  will  be  answerable  in  damages  to 
any  one  who  suffers  from  the  wrong. 

Chief-Justice  Marshall  said,  in  delivering  judgment,  "  that 
he  was  at  first  disposed  to  think  that  a  distinction  ought  to 
be  taken  between  the  acts  of  civil  and  those  of  military  offi- 
cers, and  between  proceedings  within  the  body  of  the  country 
and  those  on  the  high  seas.  The  implicit  obedience  which 
military  men  usually  pay  to  the  orders  of  their  superiors,  and 
which  indeed  is  indispensably  necessary  to  every  military 
system,  appeared  to  him  strongly  to  imply  the  principle  that 
those  orders,  if  not  to  perform  a  prohibited  act,  ought  to  jus- 
tify the  person  whose  general  duty  it  is  to  obey  them,  and 
who  is  placed  by  the  laws  of  his  country  in  a  situation  which 
in  general  requires  that  he  should  obey  them.  The  inclination 
of  his  mind  had  been  that  where,  in  consequence  of  orders 
from  the  legitimate  authority,  a  foreign  vessel  is  seized  with 
pure  intentions,  the  claim  of  the  injured  party  for  damages 
should  be  against  the  government  from  which  the  orders  pro- 
ceeded, and  would  be  a  proper  subject  for  negotiation.  But 
he  was  convinced  that  this  view  was  erroneous,  and  acquiesced 
in  the  opinion  of  his  brethren,  which  was  that  the  instruc- 
tions could  not  change  the  nature  of  the  transaction,  or 
legalize  an  act  which  without  them  would  have  been  a  plain 
trespass."  ^ 

Bright,  1  Wharton's  Digest  (4th  ed.),  347;  *'  Trial  of  Smith  and  Ogden," 
as  cited  in  The  Commonwealth  v.  Blodgett,  12  Metcalf. 

1  Agreeably  to  Buron  v.  Denman,  2  Ex.  167,  a  wrong  done  by  a  mili- 
tary or  naval  officer  to  the  subject  of  a  foreign  power  in  pursuance  of 
orders  from  his  government,  or  ratified  by  it,  is  national,  and  the  injured 
party  cannot  maintain  an  action  for  damages,  but  must  seek  redress 
through  his  own  government,  which  may  negotiate,  or  have  recourse  to 
arms.  See  Elphinstone  v.  Bedreechund,  1  Knapp  P.  C.  316;  1  Smith's 
Lead.  Cas.  (8  Am.  ed.)  1063.     The  first  thought  of  the  Chief -Justice 


916  REASONABLE  AND  PROBABLE  CAUSE 

It  was  held  on  like  grounds  in  Gelston  v.  Hoyt  ^  that  the 
collector  of  the  port  could  not  rely  on  the  President's  com- 
mand as  a  justification  for  the  seizure  of  the  plaintiff's  ship, 
even  if  the  case  was  within  the  provisions  of  the  act  of  1794 
authorizing  the  employment  of  the  land  and  naval  forces 
of  the  United  States  to  detain  any  vessel  fitted  out  with  a 
hostile  purpose  against  a  foreign  government.  It  was  con- 
tended, as  the  greater  includes  the  less,  that  when  the  mili- 
tary arm  might  be  put  forth,  it  cannot  be  wrong  to  employ 
the  civil.  The  defence  was  overruled,  because  a  statute 
which  transcends  the  common  law  should  be  strictly  con- 
strued ;  and  in  designating  the  army  and  navy  as  the  instru- 
ments, Congress  must  be  presumed  to  have  intended  that 
the  authority  which  the  act  conferred  should  not  be  exer- 
cised save  in  an  extreme  case,  requiring  a  resort  to  military 

was  therefore  presumably  right  as  to  the  matter  in  hand;  but  such  cases 
depend  on  the  rules  of  international  law,  and  do  not  affect  the  principle 
that  an  illegal  act  is  not  the  less  a  ground  for  the  recovery  of  damages 
because  it  is  done  in  pursuance  of  a  governmental  command.  To  render 
the  doctrine  of  Buron  v.  Denman  available,  the  act  must  be  done  on 
behalf  of  the  government  by  which  it  is  ratified,  and  consonant  with  the 
laws  of  war ;  and  one  sovereignty  cannot  throw  its  mantle  over  a  breach 
of  the  laws  of  another  which  has  been  committed  for  private  ends,  nor 
unless  it  would  have  been  justifiable  on  the  part  of  a  belligerent. 

In  The  People  v.  McCloud,  25  Wend.  482;  1  Hill,  377,  a  steamer  which 
had  been  employed  during  the  day  in  carrying  supplies  to  aid  an  insurrec- 
tion in  Canada  was  burned  after  nightfall  in  an  American  port  by  a  party 
of  men  who  were  arrayed  against  the  insurgents;  and  it  was  held  that  a 
ratification  by  the  English  Government  could  not  be  pleaded  to  an  indict- 
ment for  the  offence  in  the  courts  of  New  York.  Such  a  case  would  now 
probably  be  removed  into  a  federal  tribunal,  as  involving  a  question  under 
the  Constitution  of  the  United  States. 

Even  when  a  governmental  order  is  lawful,  it  will  not  be  a  justifica- 
tion for  an  act  outside  of  the  authority  which  it  confers,  though  done  in 
good  faith  under  an  innocent  mistake  of  fact.  See  Tobin  v.  The  Queen, 
16  C.  B.  (N.  s.)  310,  348;  Money  v.  Leach,  3  Burr.  17,  42;  and  in  Madraes 
V.  Will,  3  B.  &  Aid.  353,  a  verdict  of  £20,000  was  recovered  against  a 
naval  officer  for  the  destruction  of  a  Spanish  ship  in  the  belief  that  she 
was  engaged  in  the  slave  trade  and  should  be  captured  or  sunk  in  the  per- 
formance of  his  duty,  and  according  to  the  treaties  between  England  and 
Spain. 

1  3  Wheaton,  242. 


MAY   BE  A  JUSTIFICATION.  917 

force,  and  where  the  ordinary  course  of  law  would  be  un- 
availing. 

It  is  not  less  clear  that  although  the  justification  must  be 
based  on  necessity,  and  cannot  stand  on  any  other  ground,  it 
will  be  enough  if  the  circumstances  induce  and  justify  the  be- 
lief that  an  imminent  peril  exists,  and  cannot  be  averted  with- 
out transcending  the  usual  rules  of  conduct.  For  when  the 
exigency  does  not  admit  of  delay,  and  there  is  a  reasonable 
and  probable  cause  for  believing  that  a  particular  method  is 
the  only  one  that  can  avert  the  danger,  it  will  be  morally 
necessary,  even  if  the  event  shows  that  a  different  and  less  ex- 
treme course  might  have  been  pursued  with  safety.  Whether 
the  wooden  houses  should  have  been  destroyed  in  the  in- 
stance mentioned  by  Chief-Justice  McKean^  depended  on  the 
facts  as  then  disclosed  or  apparent,  and  not  on  a  result  which 
could  not  be  foreseen  ;  and  the  indecision  of  the  Lord  Mayor 
would  not  have  been  less  culpable  if  a  sudden  rain  or  shift  of 
wind  had  extinguished  the  flames  or  given  them  another  direc- 
tion. What  reason  and  duty  dictate,  is  obligatory  in  morals ; 
and  such  a  necessity  has  always  been  deemed  a  justification 
by  the  law.^ 

The  question  arose  in  another  form  in  the  case  of  Mitchell 
V.  Harmony ,3  which  was  an  action  brought  for  the  seizure  of 
certain  mules  and  wagons  during  the  war  with  Mexico  in 
1847.  Harmony,  the  plaintiff  below,  had  accompanied  the 
army  into  Mexican  territory,  and  the  property  was  taken 
while  there  to  aid  in  the  transportation  of  the  baggage  and 
supplies  of  the  troops  which  were  marching  against  the 
enemy.  The  defendant  below  pleaded  not  guilty,  and  also 
a  special  plea,  justifying  the  taking  under  an  order  given  by 
his  superior  officer,  which  was  alleged  to  be  lawful,  arid  one 
that  he  was  bound  to  obey.  The  judge  before  whom  the 
case  was  tried  instructed  the  jury  that  to  justify  a  seizure  of 
property,  to  prevent  it  from  falling  into  the  hands  of  the 
enemy,  the  peril  must  be  immediate  and  urgent,  not  con- 
tingent or  remote. ,  It  must  be  a  case  where  the  goods 
would  in  all  probability  be  captured  if  not  destroyed.      This 

1  See  ante,  p.  762.  ^  See  ante,  p.  103.  «  13  Howard,  115. 


918  BEASONABLB    AND  PROBABLE   CAUSE 

defence  was  not  made  out  in  fact.  Another  ground  on  which 
the  defendant  reHed  was  that  the  goods  had  been  taken  for 
pubhc  use.  The  principle  was  undoubted ;  but  it  rested  on 
the  ground  of  necessity,  and  could  only  be  applied  where  the 
need  was  extreme.  If  the  enemy  had  been  present  in  supe- 
rior force,  and  there  were  no  other  means,  the  teams  and 
wagons  of  the  plaintiff  might  have  been  seized  to  aid  in  the 
transportation  of  supplies  and  stores.  But  there  could  be  no 
right  to  take  them  for  the  purpose  of  strengthening  the  army 
and  aiding  in  the  accomplishment  of  a  remote  or  ulterior 
object.  In  such  a  case  there  might  be  an  expediency  or  ad- 
vantage, but  there  was  not  that  immediate  and  overwhelm- 
ing necessity  which  could  alone  justify  such  a  conversion  of 
private  property. 

These  views  were  sustained  and  the  decision  affirmed  by 
Taney,  C.-J.,  in  delivering  the  judgment  of  the  Supreme  Court 
of  the  United  States.  "  There  are  occasions  where  private 
property  may  be  lawfully  taken  possession  of  or  destroyed  to 
prevent  it  from  falling  into  the  hands  of  the  public  enemy, 
and  also  where  a  military  officer  charged  with  a  particular 
duty  may  impress  private  property  or  take  it  for  public  use. 
Under  these  circumstances  the  government  is  bound  to  make 
full  compensation  to  the  owner ;  but  the  officer  is  not  a  tres- 
passer. But  in  every  such  case  the  danger  must  be  present 
or  impending,  and  the  necessity  such  as  does  not  admit  of 
delay  or  the  intervention  of  the  civil  authority  to  provide  the 
requisite  means.  It  is  impossible  to  define  the  particular  cir- 
cumstances in  which  the  power  may  be  lawfully  exercised. 
Every  case  must  depend  on  its  own  circumstances.  It  is 
the  emergency  that  gives  the  right,  and  the  emergency 
must  be  shown  before  the  taking  can  be  justified.  In  decid- 
ing upon  this  necessity,  the  state  of  the  facts  as  they  appeared 
at  the  time  will  govern  the  decision,  because  the  officer  in 
command  must  act  upon  the  information  of  others  as  well  as 
his  own  observation.  And  if,  with  such  information  as  he 
can  obtain,  there  is  a  reasonable  ground  for  believing  that  the 
peril  is  immediate  or  the  necessity  urgent,  he  may  do  what 
the  occasion  seems  to  require,  and  the  discovery  that  he  was 


MAY  BE  A  JUSTIFICATION.  919 

mistaken  will  not  make  him  a  wrongdoer.  It  is  not  enough 
to  show  that  he  exercised  an  honest  judgment,  and  took  the 
property  to  promote  the  public  service,  he  must  also  prove 
what  the  nature  of  the  emergency  was,  or  what  he  had  reason- 
able grounds  to  believe  it  to  be  ;  and  it  will  then  be  for  the 
court  and  jury  to  say  whether  it  was  so  pressing  as  to  justify 
an  invasion  of  private  right.  Unless  this  is  established,  the 
defence  must  fail,  because  it  is  very  clear  that  the  law  will 
not  permit  private  property  to  be  taken  merely  to  insure  the 
success  of  an  enterprise  against  the  public  enemy."  It  was 
equally  plain  that  the  order  given  by  the  commanding  officer 
in  the  case  in  hand  was  not  a  justification.  Urgent  necessity 
could  alone  give  the  right,  and  if  it  did  not  exist,  the  com- 
mand was  illegal,^  and  did  not  vary  the  case.  The  point  was 
so  decided  in  a  case  cited  by  Lord  Mansfield  in  Mostyn  v. 
Fabrigas  ;  ^  and  upon  principle,  independent  of  the  weight 
of  judicial  decision,  a  military  officer  cannot  justify  himself 
for  doing  an  unlawful  act  by  producing  the  command  of 
his  superior. 

This  decision  shows  also  that  the  question  of  probable  cause 
is  in  this,  as  in  most  other  instances,  one  of  law  for  the  court. 
The  facts  are  for  the  jury ;  but  it  is  for  the  judges  to  say 
whether,  if  found,  they  amount  to  probable  cause.  From  this 
case,  taken  in  connection  with  that  of  Sparhawk  v.  Respublica, 
we  may  draw  the  following  inferences:  (1)  Expediency,  policy, 
and  a  sincere  regard  for  the  public  good  will  not  justify  the 
arrest  of  a  citizen  or  an  invasion  of  the  right  of  property  either 
in  peace  or  war.  (2)  Acts  of  this  description  may  be  justified 
on  the  ground  of  necessity,  which  must,  however,  be  lirgent, 
actual,  and  imminent.  (3)  A  belief  that  such  a  necessity 
exists  will  not  be  sufficient  unless  it  is  also  shown  to  be  well 
founded.  But  if  there  are  reasonable  and  probable  grounds 
for  believing  that  the  peril  is  imminent  and  the  necessity  ur- 
gent, the  party  will  not  become  a  trespasser  because  the  infor- 
mation on  which  he  relies  proves  to  be  false ;  for  where  the 
circumstances  render  it  imperative  to  act,  and  cast  the  re- 

^  See  Dicey,  Law  of  the  Constitution,  298,  311. 
2  1  Cowper,  180.     See  ante,  pp.  140,  914. 


920  A  COMMAND   MAY  BE  PEOBABLE   CAUSE. 

sponsibility  on  an  individual,  he  must  be  governed  by  what 
appears  or  can  be  learned  at  the  time,  and  there  may  be 
probable  cause  for  a  belief  which  has  no  foundation  in  fact. 

A  subordinate  stands,  as  regards  the  application  of  these 
principles,  in  a  different  position  from  the  superior  whom  he 
obeys,  and  ma}^  be  absolved  from  liability  for  executing  an 
order  which  it  was  criminal  to  give.  The  question  is,  as  we 
have  seen,  Had  the  accused  reasonable  cause  for  believing  in 
the  necessity  of  the  act  which  is  impugned  ?  and  in  determin- 
ing this  point,  a  soldier  or  member  of  the  posse  comitatus  may 
obviously  take  the  orders  of  the  person  in  command  into  view 
as  proceeding  from  one  who  is  better  able  to  judge  and  well 
informed  ;  and  if  the  circumstances  are  such  that  the  com- 
mand may  be  justifiable,  he  should  not  be  held  guilty  for 
declining  to  decide  that  it  is  wrong  with  the  responsibility 
incident  to  disobedience,  unless  the  case  is  so  plain  as  not 
to  admit  of  a  reasonable  doubt.^  A  soldier,  consequently, 
runs  little  risk  in  obeying  any  order  which  a  man  of  common 
sense  so  placed  would  regard  as  warranted  by  the  circum- 
stances ;  and  if  the  jury  by  whom  the  cause  is  tried  ren- 
der an  erroneous  verdict,  the  accused  may  be  set  at  large  by 
a  pardon  or  through  a  motion  for  a  new  trial,  which,  though 
not  allowed  in  England  in  criminal  cases,  is  not  infrequently 
granted  in  this  country. 

^  See  Dicey,  Law  of  the  Constitution,  312 ;  Stephanas  History  of  the 
Criminal  Law,  205,  206. 


LECTUKE   XLII. 

Martial  Law  an  Application  of  the  Principle  of  the  Police  Power  to  the 
Exigencies  of  War.  —  The  Right  of  a  General  during  Insurrection 
and  Invasion  analogous  to  that  of  the  Sheriff  in  quelling  a  Riot. — There 
is  this  Difference,  that  in  dealing  with  the  Enemy,  whether  Invaders  or 
Insurgents,  the  General  is  beyond  the  Scope  of  the  Municipal  Law, 
and  answerable  only  under  the  Laws  of  War.  —  The  Citizens  on  whose 
Behalf  the  War  is  waged  cannot  be  deprived  of  Life,  Liberty,  or  Property 
except  on  the  Ground  of  Necessity.  —  Martial  Law  is  recognized  to  this 
Extent  by  the  Common  Law,  and  cannot  be  carried  farther  under  the 
Constitution  of  the  United  States.  —  It  has  been  said  to  be  unknown  in 
England,  but  may  be  exercised  there  during  Insurrection.  —  Enemies, 
whether  Invaders  or  Insurgents,  may  be  tried  and  sentenced  by  a  Court- 
Martial  for  a  Violation  of  the  Laws  of  War. —  The  Sentence  of  a  Court- 
Martial  conclusive  where  it  has  Jurisdiction,  but  in  the  Absence  of 
Jurisdiction  the  Court  and  the  Persons  acting  under  it  are  alike 
Trespassers. 

We  have  seen  that  whatever  force  is  requisite  for  the  de- 
fence of  the  community  or  of  individuals  is  also  lawful.  The 
principle  runs  through  civil  life,  and  has  a  twofold  application 
in  war,  —  externally  against  the  enemy,  and  internally  as  a 
justification  for  acts  that  are  necessary  for  the  common  de- 
fence, however  subversive  they  may  be  of  rights  which  in  the 
ordinary  course  of  events  are  inviolable.  The  application  of 
the  principle  depends  in  the  former  case  on  considerations 
which  are  beyond  the  scope  of  the  municipal  law,  and  may 
be  applied  in  the  latter  without  waiting  for  the  mandate  of  a 
court  or  the  sanction  of  the  legislature  ;  although  the  question 
whether  the  necessity  exists  may  be  brought  subsequently 
before  a  judicial  tribunal,  and  will  be  concluded  by  the  judg- 
ment. There  is  to  this  extent  due  process  of  law,  because 
the  parties  who  have  suffered  deprivation  have  their  day 
in  court  when  the  exigency  has  passed,  and  may,  if  there 
was  no  sufficient  cause,  recover  compensation  in  damages  or 


922  INSURGENTS   MAY  BE  DEALT  WITH 

invoke  the  rigor  of  the  criminal  law.  The  right  of  a  com- 
manding officer  to  take  private  property  for  military  use, 
to  compel  the  inhabitants  of  a  town  which  is  threatened  or 
besieged  by  a  hostile  force  to  labor  for  the  erection  of  forti- 
fications, or  to  arrest,  imprison,  or  expel  an  individual  who 
uses  language  calculated  to  induce  the  soldiers  or  towns- 
people to  lay  down  their  arms  or  revolt,  will  therefore  be 
tested  by  the  rule  which  applies  to  the  conduct  of  the  sheriff 
in  using  firearms  to  disperse  a  mob,  —  Was  there  reasonable 
and  probable  cause  for  believing  in  the  existence  of  a  peril 
that  could  be  avoided  in  no  other  way  ? 

There  is  this  difference  between  the  position  of  the  sheriff 
and  that  of  a  commanding  officer  in  the  ordinary  course  of  a 
campaign  :  the  force  used  by  the  sheriff  is  on  persons  who, 
though  acting  illegally,  are  entitled  to  the  protection  of  the 
laws ;  while  the  general  employs  force  against  an  enemy 
whom  it  is  his  mission  to  destroy,  and  is  responsible  for  what 
he  does  to  the  President  or  to  a  military  tribunal,  and  not  to 
the  courts.  If  rioters  are  followed  and  cut  down  needlessly 
after  they  have  dispersed,  it  is  murder ;  but  a  general  owes 
no  account,  save  to  his  own  conscience,  for  denying  quarter 
to  a  flying  enemy.  The  rule  holds  good  when  insurgents 
take  the  field  against  the  government,  and  they  may  be  dealt 
with  in  any  way  which  the  laws  of  war  permit  in  the  case  of 
a  foreign  enemy.  There  is,  and  from  the  nature  of  the  case 
can  be,  no  distinction  in  this  regard  between  an  intestine  and 
a  foreign  war,  because  the  government  would  otherwise  be 
at  a  disadvantage  in  dealing  with  rebellion.  But  the  rule  is 
confined  to  the  forces  arrayed  on  either  side,  and  does  not 
extend  to  the  citizens  who  take  no  part  in  the  military  opera- 
tions, although  they  may  sympathize  with  the  insurgents. 
Such  is  the  doctrine  of  the  common  law  as  given  by  Sir 
Matthew  Hale,  with  aid  of  an  experience  gathered  from  the 
protracted  struggle  which,  fought  out  in  every  county  in 
England,  ended  in  the  deposition  of  the  King  and  placing 
Cromwell  in  his  seat.  "  Martial  law  is  something  indulged, 
rather  than  allowed,  as  law,  the  necessity  for  discipline  in 
our  army  being  that  which  alone  can  give  it  countenance. 


AS  ENEMIES.  923 

And  this  indulged  law  was  only  to  extend  to  members  of 
the  army,  or  those  of  the  opposite  army,  and  was  never  so 
much  indulged  as  to  be  executed  upon  others ;  for  others 
who  are  not  listed  under  the  army  had  no  color  or  reason 
to  be  bound  by  military  constitutions  applicable  only  to  the 
army,  whereof  they  were  not  parts.  But  they  were  to  be 
ordered  and  governed  according  to  the  laws  to  which  they 
were  subject,  though  it  were  a  time  of  war."  ^ 

The  declaration  of  Lord  Loughborough  in  Grant  v.  Gould :  ^ 
*'  It  is  totally  inaccurate  to  state  martial  law  as  having  any 
place  whatever  in  the  realm  of  Great  Britain, "  should  con- 
sequently be  understood  in  this  sense,  —  that  the  citizen 
does  not  cease  to  be  under  the  protection  of  the  laws, 
or  become  subject  to  a  military  and  despotic  rule  on  the 
occurrence  of  civil  or  foreign  war,  and  not  that  insurgents 
are  exempt  from  any  force  that  may  be  emploj^ed  against 
an  invader.  The  line  is  distinctly  drawn  in  Chief-Justice 
Cockburn's  charge  to  the  grand  jury  with  reference  to  the 
indictment  for  murder  preferred  against  Colonel  Nelson  and 
Lieutenant  Brand  as  members  of  the  court-martial  which  had 
condemned  George  Gordon  and  Samuel  Clark,  on  the  23d  of 
October,  1865,  during  the  negro  rebellion  in  Jamaica :  "  A 
rebel  in  arms  stood  in  the  position  of  a  public  enemy.  You 
might  kill  him,  refuse  him  quarter,  and  deal  with  him  in  all 
respects  as  a  public  enemy.  The  jury  must  not  confound 
with  martial  law  applied  to  civilians  what  had  been  com- 
monly done  at  man}^  epochs  of  English  history  in  the  treat- 
ment of  rebels  taken  in  the  field  or  in  pursuit.  ...  It 
was  an  egregious  mistake  to  suppose  that  the  punishment 

^  This  statement  implies  that  an  indictment  could  not  have  been  sus- 
tained or  damages  recovered  against  the  officers  on  eittier  side  for  acts 
done  for  the  maintenance  of  discipline  in  their  respective  armies,  nor,  as 
it  would  seem,  against  them,  or  the  men  under  their  command,  for  death 
or  wounds  inflicted  in  the  prosecution  of  hostilities.  Such  clearly  would 
have  been  the  case  as  regards  the  commanders  of  the  royal  forces ;  and 
had  the  rebellion  been  subdued,  its  leaders  would  presumably  have  been 
tried  and  convicted  for  treason,  and  not  for  the  acts  which  went  to 
make  up  the  sum  of  that  offence. 

3  2  H.  Bl.  69. 

VOL.  II. — 18 


924  INSURGENTS  ABE  NOT  PUNISHABLE 

which  might  be  inflicted  "  if  a  mutiny  broke  out  in  a  ship 
or  in  a  regiment  "  formed  any  part  of  martial  law.  There 
was  one  law  paramount  to  all  other  laws,  and  this  was, 
where  illegal  violence  is  used  you  may  defend  yourself,  and 
repress  that  violence  by  any  amount  of  force  necessary  for 
that  purpose.  You  were  not  bound  to  submit  to  injuries 
inflicted  by  a  man  who  attacks  you  with  murderous  intent, 
and  wait  for  the  redress  which  might  afterwards  follow.  To 
use  a  common  expression,  you  at  once  take  the  law  in  your 
own  hands,  and  kill  the  offender  by  any  means  in  your  power. 
So  in  the  case  of  mutiny,  —  you  might  put  it  down  by  force. 
But  that  was  not  martial  law  ;  it  was  part  and  parcel  of  the 
law  of  England.  It  was  a  paramount  right,  recognized  by  all 
civilized  countries,  —  the  right  when  violence  is  threatened 
to  quell  it  at  once  by  any  force  which  may  be  necessar3\ 
.  .  .  Now  the  question  before  the  jury  was  whether  for  the 
suppression  of  rebellion  you  might  not  subject  persons  who 
are  not  actively  engaged  in  it,  and  whom  you  could  not  kill 
upon  the  spot,  to  a  law  which  was  in  this  sense  entirely 
exceptional,  and  to  be  carried  into  execution  in  an  excep- 
tional way.  There  was  no  authority  for  the  support  of  any 
such  proposition."  ^ 

Earnest  as  was  the  Chief-Justice,  the  grand  jury  ignored 
the  bill,  —  as  English  and  American  jurors  are  apt  to  do 
when  they  believe  that  soldiers  have  acted  in  good  faith  for 
the  defence  of  society  under  difficult  circumstances  and  in 
seasons  of  extreme  peril. 

Superficially,  it  might  appear  that  the  Chief-Justice  was  of 
opinion  that  no  exigency,  whether  in  peace  or  war,  can  so  far 
vary  the  case  as  to  bring  the  great  body  of  the  community 
which  is  not  "enlisted  "or  combatant,  under  military  control. 
Reading  between  the  lines,  however,  it  will  be  seen  that  he 
admitted  the  paramount  law  common  to  all  countries,  —  that 
whatever  force  is  necessarj^  for  self-defence  is  also  lawful. 
This  law,  applied  nationally,  is  the  martial  law,  which  is  an 
offshoot  of  the  common  law,  and  although  ordinarily  dor- 
mant* in  peace,  may  be  called  forth  by  insurrection  or  inva- 

1  Annual  Register  (n.  s.)  for  the  Year  1867  (London,  pp.  230,  234). 


BY  A  COURT-MARTIAL.  925 

sion.  War  has  exigencies,  that  cannot  readily  be  enumerated 
or  described,  which  may  render  it  necessary  for  a  commanding 
officer  to  subject  loyal  citizens,  or  persons  who  though  be- 
lieved to  be  disloyal  have  not  acted  overtly  against  the 
government,  to  deprivations  that  would  under  ordinary  cir- 
cumstances be  illegal;  and  he  must  then  depend  for  his  justi- 
fication, not  on  the  laws  of  war,  but  on  the  necessity  which, 
as  has  been  here  seen,  may  warrant  the  taking  of  life,  and 
will  therefore  excuse  any  minor  deprivation. 

The  occurrence  of  hostilities  does  not  vary  the  position  of 
the  citizen,  or  deprive  him  of  the  protection  of  the  common  law. 
For  any  injury  or  violence  inflicted  under  color  of  military 
authority  he  may  still  seek  the  redress  from  the  civil  tribunals 
which  it  is  their  duty  to  afford  in  all  seasons.^  As  regards  the 
enemy,  however,  force  may  be  used  in  any  form  which  the  law 
of  nations  permits,  and  with  the  avowed  object  of  destruction. 
Life  may  be  taken  on  the  battlefield  or  by  the  slower  process 
of  blockade  and  famine,  barns  and  houses  may  be  fired,  crops 
destroyed,  cattle  slaughtered  or  driven  off,  —  in  fine,  every 
means  of  havoc  employed  which  nature  or  science  has  placed 
within  the  reach  of  man.  The  laws  of  war,  it  is  true,  impose 
certain  restraints  which,  by  common  consent,  cannot  be  vio- 
lated ;  but  they  are  to  a  great  extent  elastic,  varying  with 
the  occasion,  and  yielding  to  the  dictates  of  necessity.  On  a 
critical  examination  of  the  subject  the  only  real  limit  will  be 
found  to  be  that  useless  cruelty  must  be  avoided,  and  no 
suffering  inflicted  which  is  not  requisite  to  overcome  the 
enemy.  A  flourishing  city  maj^  accordingly  be  laid  waste  by 
bombardment,  supplies  cut  off  from  a  populous  town  or  dis- 
trict, or  a  vessel  filled  with  passengers  sunk  at  sea,  even 
when,  as  often  happens  in  such  instances,  the  loss  and  suffer- 
ing are  chiefly  borne  by  non-combatants  or  neutrals.  The 
commanding  general  is,  moreover,  the  judge  in  the  first  in- 
stance of  what  the  laws  of  war  permit  and  the  exigency  of 
the  case  requires,  and  if  answerable  to  his  military  superiors 
for  going  beyond  the  proper  limits,  cannot  be  called  to  ac- 
count by  the  civil  or  municipal  law.     He  may  be  dismissed 

1  Tyler  v.  Pomeroy,  8  Gray,  480. 


926  INSURGENTS   PUNISHABLE  FOR   A 

by  the  President,  or  tried  and  sentenced  by  a  court-martial ; 
but  an  indictment  will  not  lie  for  an  injury  done  flagrante 
hello  to  an  alien  enemy,  or  the  inhabitants  of  a  territory  which 
is  occupied  by  the  enemy,  and  may  therefore  temporarily  be 
treated  as  hostile ;  nor  can  the  sufferer  maintain  an  action  for 
damages  after  the  return  of  peace. ^  To  refuse  quarter  on 
the  field  of  battle,  or  convict  and  hang  a  prisoner  of  war  as 
a  spy  without  sufficient  cause,  may  be  a  gross  offence  against 
humanity  and  morals,  but  is  not  murder  under  the  common 
or  statute  law.  A  spy  or  an  assassin  who  enters  the  lines, 
or  lurks  near  the  camp  with  a  hostile  purpose,  cannot  claim 
the  protection  which  the  law  of  nations  accords  to  honorable 
warfare.  He  is,  when  taken,  absolutely  at  the  disposal  of  his 
captors,  and  may  be  executed,  if  the  case  is  plain,  without 
the  form  of  trial.  Under  such  circumstances  the  officer  in 
command  has  the  power  of  life  and  death  in  his  hands,  and 
may  investigate  and  decide  the  case  himself,  without  requir- 
ing the  advice  of  others.  If  a  court-martial  is  assembled,  it 
acts  as  an  inquest  rather  than  a  court;  and  the  execution 
takes  place,  not  by  virtue  of  the  sentence  of  the  judges,  but 
under  the  immemorial  right  of  the  victor  to  dispose  as  he 
thinks  fit  of  the  vanquished. 

The  question  whether  the  accused  has  transgressed  the  laws 
of  war  is  not,  however,  the  only  one  which  may  arise  when  a 
prisoner  is  brought  before  a  court-martial ;  it  is  also  necessary 
to  determine.  Is  he  an  enemy,  and  subject  to  their  operation  ? 
In  a  foreign  war  this  ordinarily  admits  of  little  doubt ;  be- 
cause every  one  who  owes  a  permanent  or  temporary  alle- 
giance to  the  hostile  power  is  in  contemplation  of  law  hostile, 
and  may  be  so  treated.^  Such  also  is  the  rule  when  a  citizen  is 
found  in  arms  against  his  country  or  acting  as  a  spy  or  emis- 
sary in  a  foreign  or  civil  war.  Under  these  circumstances  he 
is  guilty  of  treason  under  the  doctrines  of  the  municipal  law ; 
but  this  is  a  crime  of  which  the  laws  of  war  have  no  cognizance. 
They  know  him  as  an  enemy,  and  only  as  such,  —  entitled  to 

1  See  Coleman  v.  Tennessee,  97  U.  S.  513. 

2  Ford  t?.  Surget,  97  U.  S.  605  ;  Coleman  r.  Tennessee,  97  U.  S. 
513. 


VIOLATION  OP   THE  LAWS  OF  WAR.  927 

quarter  if  he  makes  war  openly,  liable  to  death  if  he  comes  in 
disguise  or  has  recourse  to  means  which  the  rules  of  honorable 
warfare  forbid.  These  rules  have  their  basis  in  the  instinct  of 
self-preservation,  —  that  wells  must  not  be  poisoned,  that  the 
weakness  of  the  camp  shall  not  be  revealed,  that  the  soldier 
shall  not  be  in  danger  of  assassination.  A  citizen  who  vio- 
lates them  is,  equally  with  an  alien,  liable  to  be  punished 
summarily  ;  and  as  he  may  be  put  to  death  at  once,  so  he 
cannot  complain  if  his  execution  is  deferred  from  motives  of 
humanity  until  the  facts  can  be  ascertained  by  a  court-martial. 
This  results  from  the  universally  admitted  right  to  avert  peril 
by  the  death  of  the  aggressor,  and  is  a  branch  of  the  law  of 
necessity,  to  which  reference  has  already  been  made.  Other- 
wise the  citizen  who  took  up  arms  against  his  country  would 
be  in  a  better  position  than  an  alien,  and  might  resort  with 
impunity  to  measures  from  which  the  latter  would  refrain 
from  fear  of  retribution.  Still,  the  members  of  the  court- 
martial  act  in  this,  as  in  most  other  instances,  at  their  peril. 
They  have  no  jurisdiction  unless  the  accused  has,  by  taking 
part  with  the  enemy,  forfeited  the  right  to  a  trial  by  jury 
and  in  the  ordinary  course  of  law  ;  and  they  cannot,  on  well- 
established  principles,  give  themselves  jurisdiction  by  a  false 
or  erroneous  assumption  of  any  fact  on  which  that  jurisdic- 
tion depends.^  If  the  person  against  whom  the  charge  is 
brought  has  not  rendered  himself  amenable  to  the  military 
law,  the  whole  proceeding  is  coram  non  judice  and  void ; 
and  they  who  take  part  in  it  are  not  only  liable  as  tres- 
passers, but  may,  if  they  proceed  to  judgment  and  execution, 
be  convicted  of  murder  by  a  civil  tribunal.^  And  on  this 
capital  point,  on  which  the  validity  of  all  the  rest  depends, 
the  sentence  of  the  court-martial  is  so  far  from  being  conclu- 
sive that  if  the  members  are  called  to  account  for  what  they 
have  done,  they  must  plead  and  establish  all  the  facts  which 
were  conditions  precedent  to  the  exercise  of  their  authority, 

^  Dynes  v.  Hoover,  20  Howard,  65,  80;  Smith  v.  Shaw,  12  Johnson, 
267;  1  Smith's  Lead.  Ca&.  (8  Am.  ed.)  11126. 

2  Mostyn  v.  Fabrigas,  Cowper,  161 ;  1  Smith's  Lead.  Cas.  (8  Am.  ed.) 
1027,  1041.     See  ante,  p.  140  ;  Antrim's  Case,  5  PhUa.  278,  288. 


928  JURISDICTION  OF   COFRT-MARTIAL. 

and,  among  others,  that  the  status  of  the  offender  was  such 
as  to  bring  him  within  their  jurisdiction. 

The  principle  is  not  peculiar  to  courts-martial ;  it  applies 
to  all  limited  and  inferior  tribunals,  and  even  to  courts  of 
general  jurisdiction  when  manifestly  acting  beyond  the  scope 
of  their  powers.^  The  members  of  a  court-martial  are  never- 
theless entitled  to  the  benefit  of  a  principle  not  unlike  that 
which  prevails  where  an  arrest  or  seizure  is  made  under  an 
order  given  by  a  commanding  officer,  that  if  they  have  rea- 
sonable and  probable  cause  for  believing  that  the  prisoner  is 
within  their  jurisdiction,  it  wull  be  a  defence,  although  the 
fact  should  turn  out  to  be  the  other  way.  This  rule  applies 
generally  for  the  protection  of  the  judges  both  of  superior 
and  inferior  courts,  and  ought  to  operate  on  behalf  of  a  mili- 
tary tribunal. 2 

In  a  memorable  instance,  where  the  persons  alleged  to  have 
been  implicated  in  the  assassination  of  a  President  of  the 
United  States  were  convicted  and  hanged  by  the  sentence  of 
a  court-martial,  the  jurisdiction  of  the  court  depended,  if  the 
views  which  I  have  presented  are  correct,  on  whether  the 
defendants  could  properly  be  considered  as  enemies,  who, 
having  waged  war  against  the  United  States  by  undue  means, 
could  not  claim  quarter  or  protection  consistently  with  the 
laws  and  usages  of  war.  There  was  much  to  justify  such  an 
opinion,  because  they  had  conspired  to  kidnap  the  President 
and  to  carry  him  into  the  hostile  lines  while  the  Rebellion  was 
still  on  foot  and  Washington  virtually  besieged  ;  and  although 
the  deed  was  done  after  the  Southern  troops  had  laid  down 
their  arms,  war  once  commenced  does  not  end  until  both 
parties  agree  on  terms  of  peace. 

1  The  Case  of  the  Marshalsea,  10  Coke,  68,  76  ;  Williamson's  Case, 
1  Casey,  9,  18;  Duffield  v.  Smith,  3  S.  &  R.  390;  1  Smith's  Lead.  Cas. 
(8  Am.  ed.)  1108. 

3  Calder  v.  Halkett,  3  Moore  P.  C.  C.  28,  78;  1  Smith's  Lead.  Cas. 
1147. 


LECTURE  XLIII. 

Military  Law,  Military  Government,  and  Martial  Law.  —  Military  Law 
as  authorized  by  the  Constitution  consists  of  the  Rules  made  by  Con- 
gress for  the  Government  of  the  Land  and  Naval  Forces  of  the  United 
States.  —  It  and  the  Jurisdiction  of  the  Tribunals  convened  under  it 
are  confined  to  Persons  in  the  Military  or  Naval  Service  of  the  Govern- 
ment. —  A  Citizen  cannot  be  brought  within  the  Jurisdiction  of  a 
Court-Martial  by  finding  that  he  is  an  Enemy  or  Soldier,  contrary  to 
the  Fact.  —  Ofl&cers  of  the  Army  and  Navy  accountable  to  the  Civil 
Courts  for  their  Conduct  to  the  Men  under  their  Command.  —  Soldiers 
hold  a  Twofold  Relation,  and  may  be  punished  for  the  same  Act  by 
a  Court-Martial  and  by  the  Civil  Tribunals.  —  Congress  cannot  ex- 
empt Persons  in  the  Naval  or  Military  Service  from  Liability  for  Acta 
done  contrary  to  the  State  Laws.  —  The  Power  "  to  make  Rules  for 
the  Government  of  the  Land  and  Naval  Forces"  should  be  read  in 
the  light  of  the  *' Mutiny  Act." 

It  is  important  to  ascertain  how  far  the  doctrines  of  the 
common  law  as  already  stated  have  been  modified  or  enlarged 
by  the  Federal  Constitution,  and  whether  Congress  can  legis- 
latively supersede  the  judiciary  and  establish  the  French  Stat 
de  siege  throughout  the  United  States.  There  are  two  sub- 
ordinate inquiries,  —  What  power  may  be  exercised  during 
war  or  insurrection  over  the  hostile  territory?  Can  the 
military  be  placed  beyond  the  jurisdiction  of  the  State  and 
national  tribunals,  and  erected  into  a  privileged  class  who 
are  accountable  only  to  their  commanders,  or  courts  consti- 
tuted by  them  ?  Agreeably  to  the  opinion  of  Chief-Justice 
Chase  in  Ex  parte  Milligan,^  there  are  under  the  Constitution 
three  kinds  of  military  jurisdiction,  —  one  to  be  exercised  in 
peace  and  war;  another  to  be  exercised  in  time  of  foreign 
war  without  the  boundaries  of  the  United  States,  or  in  time 
of  rebeUion  and  civil  war  within  States  or  districts  occu- 
pied by  rebels  treated  as  belligerents;  and  a  third  to  be 
V4  Wallace,  141. 


930  MILITARY  LAW. 

exercised  in  time  of  invasion  or  insurrection  within  the  limits 
of  the  United  States,  or  during  rebellion  within  the  limits 
of  States  adhering  to  the  national  government,  when  the 
public  danger  requires  its  exercise.  The  first  of  these  may 
be  called  jurisdiction  under  military  law,  and  is  found  in  the 
acts  of  Congress  prescribing  rules  and  articles  of  war,  or 
otherwise  providing  for  the  government  of  the  national 
forces,  in  pursuance  of  the  power  conferred  by  the  Consti- 
tution ;  the  second  article  may  be  distinguished  as  mili- 
tary government,  superseding,  as  far  as  may  be  deemed 
expedient  the  local  law,  and  exercised  by  the  military  com- 
mander under  the  direction  of  the  President  with  the  express 
or  implied  sanction  of  Congress  ;  while  the  third  may  be  de- 
nominated martial  law  proper,  and  is  called  into  action  by 
Congress,  or  temporarily  when  the  action  of  Congress  cannot 
be  awaited,  and  in  the  case  of  justificatory  or  excusing  peril 
by  the  President,  in  times  of  insurrection  or  invasion,  or  of 
civil  or  foreign  war,  within  districts  or  localities  where  ordi- 
nary law  no  longer  adequately  secures  public  safety  and  pri- 
vate rights.  This  distribution  of  the  subject  is  sufficiently 
accurate  for  general  purposes,  and  may  be  conveniently  fol- 
lowed, although  it  does  not  indicate  the  principle  on  which 
the  authority  of  the  general  depends,  as  distinguished  from 
that  of  the  magistrate  ;  and  we  may,  in  view  of  the  decision 
of  the  majority  of  the  court,  be  excused  for  refusing  our 
assent  to  the  proposition  that  Congress  can  establish  martial 
law  irrespective  of  the  circumstances,  or  in  districts  where 
no  imminent  peril  exists. 

Military  law,  then,  consists  of  the  rules  prescribed  legisla- 
tively for  the  government  of  the  land  and  naval  forces,  which, 
operating  both  in  war  and  peace  and  defined  by  Congress, 
are  an  offshoot  of  the  civil  or  municipal  law.  Military  govern- 
ment is  the  dominion  exercised  by  a  general  over  a  conquered 
State  or  province.  It  is  therefore  a  mere  application  or  ex- 
tension of  the  force  by  which  the  conquest  was  effected,  to 
the  end  of  keeping  the  vanquished  in  subjection ;  and  Jbeing  a 
right  derived  from  war,  is  hardly  compatible  with  a  state  of 
peace.     Martial  law  is  the  right  of  a  general  in  command  of 


OFFICERS  ANSWERABLE  IN  DAMAGES.  931 

a  town  or  district  menaced  with  a  siege  or  insurrection  to 
take  the  requisite  measures  to  repel  the  enemy,  and  depends, 
for  its  extent,  existence,  and  operation,  on  the  imminence  of 
the  peril  and  the  obligation  to  provide  for  the  general  safety. 
As  the  offspring  of  necessity,  it  transcends  the  ordinary  course 
of  law,  and  may  be  exercised  alike  over  friends  and  enemies, 
citizens  and  aliens. 

Military  law  is  expressly  authorized  by  the  Constitution, 
which  declares  that  Congress  may  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces,  and  excepts 
the  army  and  navy  of  the  United  States,  together  with  the 
militia  when  in  actual  service,  from  the  provision  of  the 
Fifth  Amendment,  —  that  no  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime  unless  on  a  present- 
ment or  indictment  of  a  grand  jury.^  Congress  have  exercised 
this  power  by  establishing  a  military  code  for  the  government 
of  the  land  and  naval  forces,  under  which  courts-martial  may 
be  convened  for  the  trial  and  punishment  of  offences  against 
the  discipline  and  regulations  of  the  service.  A  commanding 
officer  may  also,  when  the  maintenance  of  discipline  requires 
it,  and  the  case  will  not  admit  of  delay,  inflict  punishment 
summarily,  without  convening  a  court-martial.^  But  as  his 
power  is  under  these  circumstances  unbounded,  and  may  ex- 
tend to  the  deprivation  of  life,  it  must,  in  order  to  prevent 
abuse,  "  be  exercised  in  due  subordination  to  the  jurisdiction 
which  the  law  hath  from  time  to  time  established  for  the  pre- 
vention of  wrong,  and  to  which  all  men  are  of  common  right 
entitled  to  apply  for  redress."  An  officer  cannot,  therefore, 
rely  exclusively  on  his  position  as  such  as  a  justification  for 
the  restraint  or  chastisement  of  an  inferior.^  He  must  show 
some  actual  or  probable  cause  which  rendered  the  exercise  of 
his  authority  necessary  and  proper  for  the  good  of  the  service, 
and  that  the  punishment  did  not  unduly  exceed  the  offence.* 
It  was  said  by  Chief-Justice  Eyre,  in  Sutton  v.  Johnson,^  to 

^  Constitution,  Article  I.,  sections  8,  14.     Amendments,  Article  V. 
2  Wilkes  V.  Dinsman,  7  Howard,  89;  12  Id.  390. 
8  Wilkes  V,  Dinsman,  7  Howard,  89;  Wilson  v.  Mackenzie,  7  Hill,  89. 
*  Wilkes  V.  Dinsman,  7  Howard,  89.  «  1  Term,  493,  504. 


932  COURT-MARTIAL  ANSWERABLE 

be  the  felicity  of  those  who  live  under  a  free  Constitution  that 
no  power,  however  absolute,  can  be  abused  to  their  hurt  with 
impunity ;  and  notwithstanding  the  view  taken  by  the  mi- 
nority of  the  court  in  three  recent  cases  of  great  moment,^ 
we  may  hope  that  this  is  as  true  of  the  United  States  as  it  is 
of  England.2 

In  Wilson  v.  Mackenzie, ^  the  defendant  pleaded  to  an 
action  of  trespass  for  blows  inflicted  on  the  plaintiff  with  a 
rope,  and  for  confining  him  in  irons,  that  the  plaintiff  was  at 
the  time  of  the  injuries  complained  of  a  duly  enlisted  seaman, 
serving  on  board  of  a  vessel  of  the  navy,  and  as  such  lawfully 
under  the  order  of  the  defendant,  who  was  the  commanding 
officer,  and  by  virtue  of  his  authority  and  in  the  exercise  of 
the  discipline  of  the  service  did  the  acts  alleged  in  the  declara- 
tion. This  plea  was  held  bad  on  demurrer,  on  the  ground 
that  the  office  and  authority  of  the  defendant  were  not  a  jus- 
tification unless  there  was  some  reasonable  and  probable 
cause  for  the  order,  which  should  have  been  averred,  and  the 
question  submitted  to  a  jury  as  one  of  fact,  subject  to  the 
instruction  of  the  court. 

Even  when  the  officer  acts  within  the  scope  of  his  powers, 
and  for  probable  cause,  and  the  punishment  is  such  as  the  law 
allows,  he  may  still  be  liable  if  he  proceeds  maliciously  and 
with  a  design  to  oppress  and  injure  his  subordinates.  The 
question  arose  in  Wilkes  v.  Dinsman,*  where  the  court  held 
that  an  action  might  be  maintained  against  the  commander  of 
a  squadron  for  lashes  inflicted  on  a  marine  under  his  orders, 
and  keeping  him  in  custody,  although  the  defendant  had 
been  acquitted  by  a  court-martial  convened  to  try  the  same 
charge  at  the  instance  of  the  plaintiff.  It  was  conceded  on 
the  evidence  that  the  plaintiff  had  been  guilty  of  insubordi- 
nation, and  that  the  punishment  was  one  which  the  defendant 

1  Ex  par/e  Milligan,  4  Wallace,  141;  Cummings  v.  Missouri,  Id.  277; 
United  States  v.  Lee,  106  U.  S.  196,  633. 

2  See  Poindexter  v.  Greenhow,  114  U.  S.  271,  287,  which  encourages 
such  a  belief,  and  Mitchell  v.  Clark,  110  Id.  633,  which  points  the  other 
way. 

«  7  Hill,  95.  *  7  Howard,  89;  12  Id.  390. 


FOR   SENTENCING   CITIZEN.  933 

might  lawfully  inflict  for  that  offence  ;  but  there  was  still 
room  for  the  decision  of  a  jury  whether  the  chastisement  was 
excessive  and  unreasonable,  and  as  to  the  motives  actuating 
the  defendant.  The  presumption  was  in  his  favor,  as  in  that 
of  every  one  acting  as  a  judge  or  exercising  a  judicial  dis- 
cretion ;  but  it  might  be  rebutted  by  proof  that  his  power 
was  abused.  In  these  instances  the  defendant  took  the 
burden  of  responsibility  on  himself  without  a  court-martial ; 
and  the  sentence  of  a  court-martial,  duly  convened  and  act- 
ing within  the  limits  of  its  powers,  like  that  of  every  other 
competent  and  duly  constituted  tribunal,  is  conclusive,  and 
a  justification  for  the  persons  who  carry  it  into  effect.^ 

To  make  the  judgment  of  any  court  effectual,  it  must  never- 
theless have  jurisdiction  of  the  cause  and  the  parties,  which 
will  not  be  presumed  in  the  case  of  limited  and  inferior  tri- 
bunals, but  must  be  shown  by  those  who  rely  on  the  judg- 
ment as  a  defence.'^  If,  therefore,  a  court-martial  sentence  a 
person  who  is  not  subject  to  their  jurisdiction  to  a  lawful 
punishment,  or  inflict  an  unlawful  punishment  on  one  over 
whom  their  authority  extends,  they  will  be  trespassers, 
and  may  be  made  answerable  civilly  or  criminally  for  the 
offence.^ 

In  Wise  v.  Withers,*  the  Supreme  Court  of  the  United 
States  held  that  inasmuch  as  the  plaintiff  was  a  justice  of  the 
peace,  and  could  not  legally  be  enrolled  as  a  militiaman,  he 
was  not  subject  to  the  jurisdiction  of  the  court-martial ;  and 
it  was  well  settled  that  the  decision  of  such  a  tribunal  in  a 
case  clearly  without  its  jurisdiction  did  not  protect  the  officer 
who  executed  it.  The  court  and  the  officer  were  alike  tres- 
passers. The  same  doctrine  was  enunciated  in  Dynes  v. 
Hoover,^  and  is  sustained  by  the  authorities  in  this  coun- 
try and  in  England,  which  show  that  the  members  of  a  mili- 

1  Dynes  v.  Hoover,  20  Howard,  65,  83. 

2  1  Smith's  Lead.  Cas.  (8  Am.  ed.)  1108,  1125. 

»  See  ante,  p.  141;  Mostyn  v.  Fabrigas,  Cowper,  161;  1  Smith's  Lead. 
Cas.  (8  Am.  ed.)  1041;  Dynes  v.  Hoover,  20  Howard,  65,  80;  Tyler  u. 
Pomeroy,  8  Allen,  480,  485. 

*  3  Cranch,  331.  «  20  Howard,  65,  81. 


934  SOLDIERS  ANSWERABLE 

tary  tribunal  take  the  risk  of  every  excess  of  jurisdiction,  and 
cannot  screen  themselves  by  alleging  that  they  mistook  the 
facts,  or  erred  from  a  want  of  knowledge  of  the  law.  If 
the  cause  and  the  parties  are  within  the  jurisdiction  of  the 
court,  and  the  sentence  such  as  the  law  sanctions,  there  can 
be  no  inquiry  into  motives,  or  whether  it  was  in  accordance 
with  the  evidence ;  but  the  burden  of  showing  that  the  con- 
dition precedent  was  fulfilled  is,  as  in  the  case  of  other  inferior 
tribunals,  on  the  persons  who  compose  the  court  or  act  under 
their  authority.^ 

A  court-martial  cannot,  by  deciding  that  a  person  who  is 
not  in  the  military  or  naval  service  of  the  United  States  is  in 
such  service,  render  him  amenable  to  their  jurisdiction,  or 
preclude  the  civil  courts  re-examining  the  question  collat- 
erally, and  liberating  him  through  a  habeas  corpus.^  Such  a 
power  would  enable  a  military  commission  arbitrarily  to  con- 
vert citizens  into  soldiers,  and  then  treat  them  as  subject  to 
the  military  law,  and  no  man  would  be  secure  from  an  arrest 
that  might  end  in  his  being  assigned  to  a  regiment  and  or- 
dered to  a  remote  corner  of  the  United  States,  or  to  a  foreign 
country.^ 

It  is,  as  we  have  seen,  a  fundamental  principle  of  the 
English  Constitution  that  the  military  shall  be  subordinate  to 
the  civil  authorities,  and  accountable  for  what  they  do  in  the 
ordinary  course  of  justice,  even  when  they  are  employed  to 
disperse  a  mob  by  force  of  arms,  or  acting  under  the  orders 
of  the  chief  magistrate  or  a  military  superior.*  This  rule 
was  adhered  to  in  the  English  Colonies,  and  has  been  fol- 

1  1  Smith's  Lead.  Cas.  (8  Am.  ed.)  1111,  1121,  1126,  1144;  Dynes 
V.  Hoover,  20  Howard,  65,  83 ;  The  Case  of  the  Marshalsea,  10  Coke,  68, 
77;  Smith  v.  Shaw,  12  Johnson,  257;  Mills  v.  Martin,  19  Id.  7;  Rath- 
bone  V.  Martin,  20  Id.  343;  Grant  v.  Gould,  2  H.  Blackstone,  69;  Ex 
parte  Milligan,  4  Wallace,  3,  129;  Wilson  v.  Mackenzie,  7  Hill,  95,  99; 
Duffield  V.  Smith,  3  S.  &  R.  590. 

^  See  ante,  p.  141 ;  Mostyn  v.  Fabrigas,  Cowper,  161 ;  1  Smith's  Lead. 
Cas.  (8  Am.  ed.  1041);  Antrim's  Case,  5  Philad.  R.  278;  5  Wheaton, 
17,  20,  64;  12  Id.  34. 

8  See  Antrim's  Case,  5  Philad.  R.  278. 

*  Dicey's  Law  of  the  Constitution,  310.     See  antej  p.  906. 


TO  THE  STATE  TRIBUNALS. 


935 


lowed  since  the  declaration  of  independence.^  It  is  of  the 
first  importance,  because  a  government  which  is  beyond 
the  reach  of  process,  and  can  enforce  its  orders  through  an 
army  which  is  responsible  only  to  a  tribunal  consisting  of  its 
own  members,  is  practically  absolute,  whatever  it  may  be  in 
theory.  Congress  have  accordingly,  like  Parliament,  been  so 
jealous  of  military  power  that  while  a  soldier  who  has  been 
guilty  of  an  offence  against  a  citizen  or  another  soldier  may 
be  sentenced  by  a  court-martial  for  the  act  considered  as 
a  breach  of  military  rules,  he  is  still  amenable  to  the  civil 
authorities,  and  may  be  made  answerable  before  a  jury  for 
the  violation  of  the  laws  of  the  State  where  the  act  was 
done.*^ 

An  officer  or  soldier  cannot,  therefore,  be  placed  beyond 
the  reach  of  the  common  law  by  convening  a  court-martial 
and  directing  it  to  try  the  case,  nor  will  an  acquittal  or  con- 
viction by  such  a  tribunal  be  a  bar  to  an  indictment ;  the 
reason  being  that  although  the  act  is  one,  there  are  two 
offences,  and  each  jurisdiction  may  take  cognizance  of  so 
much  of  the  injury  as  is  peculiar  to  itself.^  Such  is  the 
established  rule  in  England ;  and  although  Congress  are  au- 
thorized to  make  rules  for  the  government  of  the  land  and 
naval  forces,  they  cannot,  according  to  the  generally  received 
opinion,  confer  exclusive  jurisdiction  on  the  military  tribunals 
unless  the  wrong  is  committed  without  the  limits  of  the 
United  States,  or  in  some  State  which  is  temporarily  in  the 
possession  of  a  hostile  force  and  where  there  are  no  courts 
that  recognize  the  authority  of  the  federal  government.* 

The  right  of  the  States  to  make  needful  rules  for  the 
preservation  of  health  and  order,  and  to  protect  life,  liberty, 
and  propert}^  commonly  known  as  the  police  power,  was 
never  surrendered,  and  is  impliedly  reserved  to  them  in  the 

^  See  anfe,  p.  143. 

2  See  Coleman  v.  Tennessee,  97  U.  S.  513;  The  People  v.  Godfrey,  17 
Johnson,  225;  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  525,  538. 

*  See  Fox  v.  Ohio,  5  Howard,  410  ;  Unit€d  States  v.  Marigold,  9  Id. 
560;  Moore  v.  Illinois,  14  Id.  13;  Coleman  v.  Tennessee,  97  U.  S.  519. 

*  See  Coleman  v.  Tennessee,  97  U.  S.  519,  531. 


936  THE   JURISDICTION   OF   THE  MILITARY 

Constitution.^  It  cannot,  therefore,  be  impaired  by  Congress  , 
and  that  it  would  be  so  impaired  by  an  act  precluding  the 
State  tribunals  from  taking  cognizance  of  murder,  robbery, 
and  other  private  or  public  wrongs  done  within  their  respec- 
tive jurisdictions  by  persons  in  the  military  or  naval  service 
of  the  United  States,  is  too  plain  for  argument.  The  civil 
tribunals  of  the  United  States  cannot  proceed  in  such  cases 
without  infringing  the  rights  reserved  to  the  States  and  to 
the  people ;  and  it  is  therefore  incongruous  to  suppose  that 
they  can  be  placed  exclusively  under  military  control  in  time 
of  peace,  and  when  there  is  no  reason  for  the  application  of 
martial  law.  As  above  stated,  there  are  in  every  such  in- 
stance two  offences,  —  one  against  the  State,  the  other  against 
the  rules  framed  for  the  government  of  the  army  and  navy ; 
and  it  is  the  latter  only  that  can  be  tried  and  punished  by  a 
court-martial. 

It  was  nevertheless  intimated  in  the  recent  case  of  Cole- 
man V.  Tennessee  2  that  the  Constitution  does  not  recognize 
these  principles,  and  that  Congress,  under  the  power  to  make 
rules  for  the  government  of  the  land  and  naval  forces,  may 
give  military  tribunals  exclusive  jurisdiction  over  offences 
committed  by  persons  in  the  military  service  of  the  United 
States.  Were  sucli  a  statute  to  be  enacted,  the  check  which 
the  common  law  imposed  on  the  abuse  of  military  power 
would  be  withdrawn,  and  soldiers  might  be  employed  to 
overawe  the  judges  or  intimidate  the  people,  with  the  cer- 
tainty of  an  acquittal  by  courts  composed  of  the  officers  who 
had  ordered  or  participated  in  the  outrage.^     The  rule  that 

1  See  ante,  pp.  523,  539;  United  States  v.  De  Witt,  99  Wallace,  44  ; 
License  Cases,  5  Howard,  504;  Coleman  v.  Tennessee,  97  U.  S.  509,  531. 

2  97  U.  S.  509,  514. 

8  That  this  is  not  a  chimerical  apprehension  is  shown  by  General 
Jackson's  arrest  and  imprisonment  of  the  Louisiana  judge  who,  during 
the  War  of  1812,  had  ventured  to  issue  a  habeas  corpus,  "  thereby  ex- 
citing mutiny  in  my  camp."  True,  the  court  had  its  revenge  on  the 
return  of  peace  by  fining  the  general  in  the  sum  of  $1000  (see  2 
Winthrop's  Military  Law,  45;  Johnson  v.  Duncan,  3  Martin  (La.),  530); 
but  no  such  penalty  could  be  inflicted  were  the  jurisdiction  of  the 
military  courts  made  exclusive,  in  accordance  with  the  opinion  in  Cole- 


TRIBUNALS  SUBORDINATE. 


987 


an  illegal  command  is  not  a  justification,  which  is  the  corner- 
stone of  English  and  American  freedom,  has  no  place  in  the 
military  code,  and  could  not  be  recognized  by  a  court-martial. 
The  military  would  form  a  privileged  class  above  the  law,  and 
be  ready  instruments  for  the  subjugation  of  any  section  that 
was  obnoxious  to  the  dominant  party  in  Congress.  If  soldiers 
were  quartered  in  houses  without  the  consent  of  the  owners, 
or  employed  in  making  unreasonable  searches  and  seizures, 
contrary  to  the  Third  and  Fourth  Amendments,  there  would  be 
no  redress  except  through  a  resource  to  tribunals  constituted 
by  the  general  whose  orders  gave  occasion  for  the  wrong. 
An  order  to  pay  the  amount  due  on  a  note  or  bond  or  for 
rent  into  the  military  chest  would,  agreeably  to  Mitchell  v. 
Clarke,^  be  a  defence  to  a  suit  brought  to  enforce  the  obli- 
gation, and  a  creditor  might  thus  be  deprived  of  his  rights 
without  legal  process  at  the  whim  of  a  commander,  who  would 
in  his  turn  be  screened  from  liability  by  an  act  of  indemnity. 
No  man  would  be  safe  from  an  arrest  that  might  end  in  his 
being  sentenced  and  executed  by  a  military  commission  for 
some  act  which  was  not  punishable  when  committed,  or  that 
could  not  legally  be  visited  with  the  penalty  of  death.  In 
fine,  every  constitutional  guaranty  might  be  reduced  to  a  dead 
letter,  and  a  despotic  rule  established  during  peace  in  the 
oppressive  form  in  which  it  was  employed  under  Charles  I. 

man  v.  Tennessee.  Render  the  soldier  irresponsible,  or,  what  comes  to  the 
same  thing,  answerable  only  to  the  military  law,  and  a  military  com- 
mission becomes  the  court  of  last  resort, —  a  tribunal  from  which  there  is 
no  appeal.  The  centre  of  authority  is  then  in  the  army,  or  the  President 
as  its  head,  because  a  general  may  imprison  the  judges,  while  the  judges 
cannot  try  the  general.  The  Supreme  Court  should  be  careful  not  to  put 
the  sword  too  far  above  the  gown,  lest  they  or  their  successors  should  re- 
pent, when  it  is  too  late,  in  the  custody  of  the  provost-marshal.  Things 
equally  strange  and  unexpected  have  come  to  pass,  and  Cromwell's  order, 
'*  Remove  that  bauble,  "  the  coup  d^kat,  with  the  wholesale  arrests  and 
deportations  which  cut  the  thread  of  the  French  Republic  and  made 
Louis  Napoleon  emperor,  and,  I  may  add,  McClellan's  summary  ejection  of 
the  Maryland  Legislature  who  were  planning  secession,  would  each  have 
seemed  a  few  years  or  months  previously  too  incredible  for  conjecture  or 
belief. 

1  110  U.  S.  633. 


938  CAN  CONGRESS  EENDER 

to  break  the  spirit  of  every  Englishman  who  ventured  to 
raise  his  voice  against  the  exactions  of  the  Crown.^  The 
sufferers  might  conceivably  obtain  a  judgment  for  damages, 
but  the  execution  would  go  into  the  hands  of  a  sheriff  who 
was  himself  in  jeopardy,  and  be  as  futile  as  were  the  writs  of 
habeas  corpus  that  were  issued  during  the  Civil  War  to  test 
the  validity  of  the  military  commissions  which  tried,  sen- 
tenced, and  executed  civilians.^  The  remedy  by  suit  would 
seemingly  be  gone,  as  well  as  that  of  indictment,  because  if 
Congress  can  provide  that  criminal  proceedings  against  offi- 
cers and  soldiers  for  acts  done  under  orders  shall  take  place 
before  a  court-martial,  they  may  make  a  like  rule  for  civil 
cases,  and  by  stretching  the  prerogative  a  little  further, 
enact,  as  they  did  in  1862,  that  "  any  order  of  the  President, 
or  under  his  authority,  .  .  .  shall  be  a  defence  in  all  courts 
to  any  prosecution,  civil  or  military,  .  .  .  for  any  search, 
seizure,  arrest,  or  imprisonment  made,  done,  or  commit- 
ted by  virtue  of  such  order  or  under  color  of  any  law  of 
Congress." 

This  statute  was  limited  to  acts  done  during  the  Rebellion ; 
but  when  rebellion  begins  or  ends,  is,  under  the  recent  course 
of  legislation,  problematical.  It  is  justly  said,  in  Winthrop's 
Military  Law,-^  "  that  as  the  President,  before  a  war  is  for- 
mally declared  or  initiated,  may  be  called  upon  to  employ 
the  army  in  defensive  operations,"  so  military  government 
may  "  legally  be  continued  hello  nondum  cessante,  as  well  as 
flagrante  hello.''''  *  This  citation  indicates  what  the  course  of 
events  in  the  United  States  proves,  —  that  it  is  easier  to  pro- 
voke a  civil  war  than  to  restore  the  confidence  without  which 
peace  returns  but  in  name.  Under  these  circumstances  the 
reasons  which  justify  martial  law  subsist,  and  the  vanquished 
may  be  held  in  a  military  thraldom  which  is  war  in  disguise. 
Such  were  the  relations  of  North  and  South  after  the  sup- 

1  2  Cobbett's  Parliamentary  History,  208,  231,  233;  17  Rushworth, 
503,  543,  569,  590. 

2  See  Ex  parte  Vallandingham,  1  Wallace,  243. 
8  Vol.  ii.  p.  19 

*  See  Texas  v  White,  7  Wallace,  700, 729 ;  Dow  v.  Johnson,  100  U.  S  168. 


THE   PRESIDENT   A   DICTATOR?  939 

pression  of  the  Rebellion,  resulting  in  the  reconstruction  of 
the  seceding  States  under  corrupt  and  oppressive  govern- 
ments founded  and  maintained  by  the  bayonet.  The  abuses 
incident  to  such  a  system  could  not  be  remedied  at  the  polls 
or  by  an  overt  recourse  to  arms,  and  led  to  the  formation  of 
secret  societies.  These,  known  as  the  Ku-Klux,  resorted  to 
means  of  intimidation  which,  although  not  comparable  to  much 
that  political  discontent  and  race  hostility  have  prompted  in 
other  countries,  needed  repression.  The  exigency  was  thought 
to  require  an  extreme  remedy,  going  to  the  verge  of  the  Con- 
stitution, and  beyond  it;  and  in  April,  1871,  long  after  the 
surrender  of  the  last  Confederate  army,  Congress  provided 
that  — 

"  In  all  cases  where  insurrection,  domestic  violence,  unlawful  com- 
binations or  conspiracies  in  any  State  shall  so  obstruct  or  hinder 
the  execution  of  the  laws  thereof,  and  of  the  United  States,  as  to 
deprive  an}^  portion  or  class  of  the  people  of  such  State  of  an}"  of 
the  rights,  privileges,  immunities,  or  protection,  named  in  the  Con- 
stitution and  secured  by  this  act,  and  the  constituted  authorities  of 
such  State  shall  either  be  unable  to  protect,  or  shall,  from  any 
cause,  .fail  in  or  refuse  protection  of  the  people  in  such  rights,  such 
facts  shall  be  deemed  a  denial  b}'  such  State  of  the  equal  protection 
of  the  laws  to  which  thej'  are  entitled  under  the  Constitution  of  the 
United  States,  and  in  all  such  cases,  or  whenever  any  such  insurrec^ 
tion,  violence,  unlawful  combination,  or  conspiracy  shall  oppose  or 
obstruct  the  laws  of  the  United  States  or  the  due  execution  thereof, 
or  impede  or  obstruct  the  due  course  of  justice  under  the  same,  it 
shall  be  lawful  for  the  President,  and  it  shall  be  his  dut}',  to  take 
such  measures,  by  the  employment  of  the  militia  or  the  land  and 
naval  forces  of  the  United  States,  or  of  either,  or  b}'  other  means, 
as  he  may  deem  necessar}'  for  the  suppression  of  such  insurrection, 
domestic  violence,  or  combinations ;  and  any  person  who  shall  be 
arrested  under  the  provisions  of  this  and  the  preceding  section  shall 
be  delivered  to  the  marshal  of  the  proper  district,  to  be  dealt  with 
according  to  law. 

"  Section  4.  That  whenever  in  any  State  or  part  of  a  State  the 
unlawful  combinations  named  in  the  preceding  section  of  this  act 
shall  be  organized  and  armed,  and  so  numerous  and  powerful  as  to 
be  able,  by  violence,  to  either  overthrow  or  set  at  defiance  the  con- 

VOL.  II. — 19 


940  THE  JURISDICTION  OF  MILITARY 

stituted  authorities  of  such  State,  and  of  the  United  States  within 
such  State,  or  when  the  constituted  authorities  are  in  complicit}' 
with,  or  shall  connive  at  the  unlawful  purposes  of,  such  powerful 
and  armed  combinations ;  and  whenever,  by  reason  of  either  or  all 
of  the  causes  aforesaid,  the  conviction  of  such  offenders  and  the 
preservation  of  the  public  safety  shall  become  in  such  district  im- 
practicable, in  every  such  case  such  combinations  shall  be  deemed 
a  rebellion  against  the  government  of  the  United  States  ;  and  during 
the  continuance  of  such  rebellion,  and  within  the  limits  of  the  dis- 
trict which  shall  be  so  under  the  sway  thereof,  such  limits  to  be 
prescribed  by  proclamation,  it  shall  be  lawful  for  the  President  of 
the  United  States,  when  in  his  judgment  the  public  safet}'  shall 
require  it,  to  suspend  the  privileges  of  the  writ  of  habeas  corpus, 
to  the  end  that  such  rebellion  may  be  overthrown."  ^ 

If  this  act  was  a  legitimate  exercise  of  the  powers  of  Con- 
gress, rebellion  may  be  "  deemed  to  exist,"  troops  employed, 
and  the  writ  of  habeas  corpus  suspended,  whenever  unlawful 
combinations  render  it  hazardous  for  emploj^ers  to  hire,  or 
workmen  to  labor,  except  in  accordance  with  rules  which  are 
enforced  underhand  or  overtly  by  violence,  and  the  consti- 
tuted authorities  are  unable  or  decline  to  afford  the  "  equal 
protection  of  the  laws  "  to  the  oppressed. 

It  may  be  said  that  confidence  in  Congress  and  the  Presi- 
dent forbids  the  idea  that  they  will  misuse  any  power  that 
may  be  placed  in  their  hands  ;  but  the  Constitution  does  not 
rest  on  such  a  basis.     The  restraints  which  it  provides,  and 

1  Act  of  April  20,  1871,  chap.  22,  sections  3,  4.  It  was  limited  to 
seventeen  months  from  its  passage,  and  was  not  re-enacted. 

Why  the  "  privilege  of  the  writ  of  habeas  corpus  "  was  to  be  suspended, 
is  not  obvious,  because  the  preceding  sections  of  the  statute  provided  for  the 
employment  of  troops  in  aid  of  the  civil  authorities,  and  the  federal  courts 
were  open  and  in  the  unimpeded  exercise  of  their  functions;  but  it  prob- 
ably was  from  the  idea  that  such  a  suspension  is  equivalent  to  a  procla- 
mation of  martial  law.  Like  most  extreme  and  coercive  measures  which 
cannot  be  carried  to  the  bitter  end,  the  act  did  not  effect  its  object.  The 
intimidation  of  colored  voters  was  practised  on  one  side  as  before,  and 
counteracted  on  the  other  by  a  fraudulent  manipulation  of  the  election 
returns;  and  the  result  was  the  contested  Presidential  election  of  1876, 
which  would  have  plunged  the  country  in  civil  war  had  not  the  existing 
generation  seen  enough  of  fighting  and  been  anxious  to  keep  the  peace. 


TRIBUNALS  NOT  EXCLUSIVE.  941 

still  more  those  imposed  by  the  amendments,  indicate  distrust, 
not  confidence,  and  should  be  read  in  the  spirit  in  which  they 
were  drawn.  They  were  dictated  by  a  profound  conviction 
that  despotic  power  will,  in  the  course  of  events,  be  abused, 
and  should  no  more  be  accorded  to  a  majority  than  to  a  king. 

We  may  doubt  whether  the  power  to  "  make  rules  for  the 
government  of  the  land  and  naval  forces"^  should  receive 
the  broad  interpretation  suggested  in  Coleman  v.  Tennessee. 
What  it  implies  seems  to  be  that  Congress  may  lay  down 
such  rules  as  will  conduce  to  the  discipline  and  efficiency 
of  the  army  and  navy,  and  enable  the  President  to  exercise 
an  effectual  control  over  the  officers  and  men,  and  not  that 
they  may  place  the  soldier  beyond  the  ordinary  course  of  law 
and  deprive  the  great  body  of  the  community  of  the  safe- 
guards of  the  Constitution  by  providing  that  no  act  done  under 
military  authority  shall  be  punishable  unless  it  is  so  adjudged 
by  a  court-martial.  An  injury  inflicted  by  a  soldier  on  the 
person  or  property  of  a  citizen  is  a  breach  of  discipline,  but  it 
is  also  an  offence  against  the  State  and  federal  laws.  In  the 
former  aspect  it  may  be  placed  under  the  cognizance  of  the 
military  tribunals  with  advantage,  not  only  to  the  service, 
but  to  the  people,  as  affording  a  prompt  remedy  for  exactions 
which  might  otherwise  go  unpunished.  In  the  latter  it  can- 
not be  withdrawn  from  the  jurisdiction  of  the  civil  tribunals 
consistently  with  fundamental  principles.  Such  has  been 
the  common  law  view  from  the  earliest  periods,  and  there 
is  nothing  in  the  language  of  the  Constitution  which  indi- 
cates an  intention  to  establish  a  different  view. 

Were  this  questionable  on  the  mere  wording  of  the  clause, 
it  would  seem  clear  in  view  of  the  regard  that  should  be  had, 
in  the  interpretation  of  the  Constitution,  to  the  principles  and 
maxims  which  the  Colonists  brought  with  them  from  Eng- 
land and  viewed  as  an  inestimable  part  of  their  inheritance. 
Among  these  was  a  rooted  jealousy  of  a  standing  army  and  a 
fixed  belief  that  it  was  incompatible  with  freedom  unless  held 
in  strict  subordination  to  the  common  law.^  The  hostility  of 
the  American  people  to  any  interference  by  the  military  with 
^  Constitution,  Art.  1,  sect.  8.  2  Federalist,  No.  viii 


942  SOLDIERS   ANSWERABLE  IN   COURT. 

the  regular  administration  of  justice  in  the  civil  courts  was  as 
marked  then  as  it  is  now  ;  ^  and  they  could  not  have  felt  other- 
wise in  view  of  the  source  from  which  they  sprang.  It  was  with 
reluctance,  and  under  the  compulsion  of  events,  that  Parlia- 
ment came  to  enact  in  1789  that  persons  who  took  service  in  the 
army  should  be  subject  to  military  law;  and  a  statute  exempt- 
ing them  from  liability  to  trial  and  conviction  by  a  jury  would 
have  been  summarily  rejected,  and  insured  the  downfall  of 
the  minister  who  proposed  it.  Both  Houses  were  in  im- 
minent peril  from  the  violence  of  the  mob  during  the  Lord 
George  Gordon  riots,  and  they  saw  London  given  up  to  pil- 
lage and  in  danger  of  a  general  conflagration  ;  but  the  em- 
ployment of  the  troops  to  restore  order  was  severely  criticised, 
and  tolerated  only  on  the  ground  taken  by  Lord  Mansfield, 
that  they  were  part  of  the  posse  comitatus,  and  accountable  for 
what  they  did  in  the  courts.^ 

It  is  therefore  a  reasonable  inference  that  what  the  framers 
of  the  Constitution  intended  was  to  enable  Congress  to  follow 
the  example  set  by  the  Mutiny  Act,  which  dates  from  the  ac- 
cession of  the  Prince  of  Orange.  Never  had  the  cause  of  civil 
and  religious  liberty  been  in  greater  peril.  Upheld  by  a  hand- 
ful of  Englishmen,  who  alone  in  the  civilized  world  clung  to 
the  principles  of  Magna  Charta,  it  was  undermined  by  Jacobite 
conspiracies  at  home  and  by  insurrection  in  Scotland,  and 
menaced  on  one  side  by  the  Irish  Catholics,  whose  only  hope 
lay  in  the  success  of  James,  and  on  the  other  by  the  military 
power  of  Louis  XIV.  The  outlook  was  a  gloomy  one,  and 
called  even  more  urgently  than  did  secession  and  the  late 
Civil  War  for  an  efficient  exercise  of  military  force  and  mar- 
tial law.  How  to  provide  for  the  emergency  was  not  plain, 
because  it  was  generally  conceded  that  with  a  standing  army 
liberty  would  be  in  danger  ;  without  one,  it  could  not  be  pre- 
served. The  dilemma  was  avoided  by  a  statute  which  har- 
monized both  views,  and  having  been  re-enacted  by  success- 
ive parliaments  with  little  substantial  change,  is  a  standing 

1  See  Coleman  v.  Tennessee,  97  U.  S.  509,  514. 

2  21  Cobbett's  Parliamentary  History,  pp.  662,  665,  673,  694;  see  also 
9  Parliamentary  History,  pp.  1274,  1294. 


ENGLISH  MUTINY   ACT. 


943 


instance  of  the  statesmanship  which  strengthens  the  hands 
of  government  without  endangering  freedom.  It  opens  with 
a  recital  that  "  whereas  no  man  may  be  forejudged  of  life 
or  limb,  or  subjected  to  any  kind  of  punishment  by  martial 
law,  or  in  any  other  manner  than  by  the  judgment  of  his 
peers  and  according  to  the  known  and  established  laws  of  this 
realm  ;  yet,  nevertheless,  it  is  requisite  for  retaining  such 
forces,  as  are  or  shall  be  raised  during  this  exigence  of  affairs, 
in  their  duty  that  exact  discipline  be  observed  and  that  sol- 
diers that  shall  mutiny  and  stir  up  sedition,  or  shall  desert  her 
majesty's  service,  be  brought  to  a  more  exemplary  and  speedy 
punishment  than  the  usual  forms  of  law  w^ill  allow."  The 
statute,  which  was  originally  limited  to  seven  months,  and 
has  since  been  renewed  only  from  year  to  year,  then  enumer- 
ated certain  offences,  as  mutiny,  desertion,  etc.,  which  might 
be  visited  with  death  or  such  other  punishment  as  a  court- 
martial  saw  fit  to  inflict,  and  also  authorized  the  Crown  to 
"  frame  articles  of  war,  and  constitute  courts-martial,  with 
power  to  try  any  crime  by  such  articles,  and  inflict  penalties 
by  sentence  of  judgment  for  the  same."  The  arm}^  was  thus 
mad-e  subject  to  military  law  so  long  as  Parliament  should 
think  fit  to  keep  the  act  alive ;  but  it  was  at  the  same  time 
declared,  "  Nothing  in  this  act  contained  shall  extend  or  be 
construed  to  exempt  any  officer  or  soldier  whatsoever  from 
the  ordinary  process  of  law."  ^ 

An  English  soldier,  consequently,  holds  a  twofold  relation, 
—  on  one  side  towards  his  fellow-citizens  outside  the  army  ;  on 
the  other  to  his  fellow-soldiers  as  components  of  the  organi- 
zation to  which  he  belongs.  In  the  former  relation  he  has 
duties  and  obligations  which  may  render  him  liable  to  severe 
chastisement  for  acts  that  would  be.  trivial  on  the  part  of  a 
civilian.  In  the  latter  he  is  subject  to  all  the  duties  and 
liabilities  imposed  by  the  common  and  statute  law  on  the 
people  at  large,  and  cannot  rely  on  the  orders  of  his  com- 
mander as  a  justification  for  any  act  which  is  contrary  to  law. 
So  deeply  were  these  ideas  imprinted  on  the  English  mind 
that  the  soldiers  who  fired  on  the  Boston  mob  when  New 

iBl.  Com.  415. 


944  AMERICAN  ARTICLES   OF  WAR. 

England  was  on  the  verge  of  insurrection  were  tried,  not  by 
a  court-martial,  but  by  a  Boston  jury,  who  responded  to  the 
confidence  reposed  by  an  acquittal.  It  is  inconceivable  that 
the  framers  of  the  Constitution  intended  to  subvert  principles 
which  were  not  less  strongly  cherished  by  Americans  after 
the  separation  from  the  mother-country  than  before  the  de- 
claration of  independence,  and  to  authorize  an  innovation  that 
would  enable  a  general  virtually  to  suspend  the  constitutional 
guaranties  by  issuing  illegal  orders  tending  to  the  deprivation 
of  life,  liberty,  and  property,  with  no  responsibility  on  his 
part  or  that  of  the  officers  and  men  by  whom  they  were  exe- 
cuted, save  to  a  court-martial  whose  members  might  be  bent 
on  the  same  ends  and  share  his  views.  Had  the  germ  of  such 
a  system  been  supposed  to  be  latent  in  the  Constitution,  it 
would  not  have  been  ratified  in  a  single  State.  Judges  and 
legislators  may,  when  the  occasion  requires  it,  be  arbitrarily 
arrested  like  meaner  men  ;  but  the  balance  should  be  kept 
even,  by  requiring  the  general  to  appear  in  court,  when  the 
exigency  is  over,  to  justify  his  conduct.  There  is  little  dan- 
ger of  a  miscarriage  of  justice,  because  the  cause  may  be  re- 
moved into  a  circuit  court  of  the  United  States,  and  thence 
on  an  appeal  or  writ  of  error  to  the  federal  court  of  last 
resort. 

The  articles  of  war  enacted  by  Congress  in  1775,  and  again 
in  1789,  after  the  adoption  of  the  Constitution,  were  framed 
on  the  lines  of  the  Mutiny  Act,  and  could  not  have  gone  much 
beyond  them  without  calling  forth  general  animadversion  ; 
and  it  was  not  suggested  by  any  one  until  after  the  late  Civil 
War  that  the  Constitution  conferred  any  greater  power.^  Con- 
temporanea  expositio  est  optima;  and  in  this  instance  no  other 
is  consistent  with  the  letter  and  spirit  of  the  instrument  which 
conferred  the  power. 

Agreeably  to  the  classification  in  Ux  parte  Milligan,  the 
next  head  is  military  government,  which  may,  as  I  have 
already  stated,  take  place  whenever  a  State  or  province  falls 
into  the  hands  of  an  enemy.     Under  these  circumstances  the 

1  See  1  Winthrop's  Military  Law,  8,  143;  3  Hallam's  Constitutional 
History  of  England,  106,  149;   1  Bl.  Com.  415. 


MILITARY  GOVERNMENT. 


945 


conquerors  may  provide  for  the  preservation  of  order  and  the 
maintenance  of  their  power  by  replacing  the  existing  laws 
and  rulers  with  a  magistracy  appointed  by  themselves  and 
acting  under  their  directions ;  and  the  regulations  made  for 
this  purpose  will  necessarily  be  valid  until  some  power  arises 
with  the  strength  to  resist.  A  provisional  government  was 
established  on  this  principle  by  General  Kearney  in  New 
Mexico  in  the  year  1847,  and  he  not  only  appointed  civil 
courts  for  the  administration  of  justice,  but  prepared  the 
code  under  which  they  were  to  proceed.  In  Leitensdorfer  v, 
Webb  ^  and  Cross  v.  Harrison  ^  the  Supreme  Court  of  the 
United  States  viewed  this  step  as  a  legitimate  exercise  of  the 
right  of  conquest,  and  seem  to  have  thought  that  the  judg- 
ments rendered  during  the  continuance  of  the  provisional 
government  remained  in  force,  and  might  be  pleaded  as  an 
estoppel  after  the  cession  of  the  province  to  the  United  States 
on  the  return  of  peace. 

It  was  determined  in  like  manner,  in  the  case  of  the 
"  Grapeshot,"  ^  that  the  President  might,  in  the  exercise  of 
his  functions  as  commander-in-chief,  establish  provisional 
courts  in  Louisiana  during  the  hostile  occupation  of  that  State 
by  the  forces  of  the  Union,  and  that  the  sentence  of  such 
a  tribunal  was  conclusive  of  the  matters  brought  before  it 
for  determination,  whether  arising  under  the  laws  of  the 
United  States  or  of  the  State.  A  war-tariff  was  also  es- 
tablished at  Vera  Cruz  during  the  war  with  Mexico,  at  the 
command  of  the  President,  and  duties  collected  under  it  on 
behalf  of  the  government.*  The  principle  in  every  such  case 
is  that  an  order  given  in  accordance  with  the  laws  of  war,  by 
virtue  of  the  conqueror's  right  to  be  obeyed,  will  have  the 
effect  of  law  as  to  acts  done  under  it  while  still  in  force. 

The  memorable  proclamation  of  Mr.  Lincoln,  which  will 
always  mark  an  epoch  in  the  history  of  the  United  States,  may 
be  referred  to  this  principle.  The  Confederacy  had  been  con- 
verted by  the  act  of  the  inhabitants  into  hostile  territory,  and 

1  20  Howard,  176.    -  «  iq  Howard,  164.  »  9  Wallace,  129. 

*  See  1  Kent's  Com,  (10th  ed.)  92,  note  h,  where  the  constitution- 
ality of  such  an  exercise  of  power  is  treated  as  questionable. 


946  EMANCIPATION   PROCLAMATION. 

the  slaves  which  it  contained  were  either  property  or  persons. 
If  property,  they  might  be  taken  from  the  enemy  by  capture  ; 
if  persons,  summoned  to  take  part  against  him  and  with  the 
government  with  which  he  was  at  war.  The  United  States 
might  therefore  follow  the  example  set  by  England  during  the 
Revolutionary  War,  which,  though  treated  as  a  grievance  in  the 
Declaration  of  Independence,  may  be  regarded  as  a  legitimate 
exercise  of  belligerent  rights.  In  one  aspect  the  procla- 
mation was  an  order  to  the  land  and  naval  forces  of  the 
United  States  to  seize  the  slaves  of  the  insurgents  as  prize  of 
war ;  in  another,  it  was  an  invitation  to  the  disaffected  sub- 
jects of  a  belligerent  to  throw  off  the  yoke  and  join  the  in- 
vading army.  Being  a  mere  command,  which  wanted  the 
force  and  effect  of  law,  it  could  work  no  change  in  the 
legal  status  of  the  slave  until  executed  b}^  the  hand  of  war; 
but  if  carried  into  execution  it  might,  like  other  acts  done 
jure  belli,  work  a  change  that  would  survive  on  the  return 
of  peace.  The  slaves  which  came  into  the  possession  of  the 
United  States  during  the  war  may  have  owed  their  freedom 
to  the  proclamation ;  but  it  was  wholly  inoperative  as  to 
those  who,  remaining  under  the  control  and  dominion  of  their 
masters,  were  finally  liberated  by  the  amendment  abolishing 
slavery  in  the  United  States.^ 

It  is  not  easy  to  say  how  far  the  authority  of  a  command- 
ing officer  over  property  extends  during  insurrection  or  inva- 
sion, but  it  clearly  should  not  be  exercised  for  the  purpose  of 
punishment,  nor  except  in  the  course  of  warlike  operations, 
or  as  a  means  of  strengthening  himself  or  weakening  the 

1  Like  the  codes  above  referred  to,  the  proclamation  was  an  order;  but 
a  standing-order  does  not  differ  from  a  law  except  that  the  authority  from 
which  it  proceeds  is  ordinarily  transitory,  and  cannot  lay  down  permanent 
rules.  Giving  full  effect  to  the  President's  command  and  to  the  principle 
on  which  alone  it  can  be  sustained,  it  did  not  warrant  uncompensated 
emancipation  in  Kentucky,  whose  forces  steadfastly  upheld  the  Union, 
and  might,  if  arrayed  on  the  other  side,  have  turned  the  scales  in  favor  of 
secession.  The  wrong  of  slavery  was  common  to  the  whole  country,  and 
magnanimity  not  less  than  justice  required  that  all  should  share  the  cost 
of  compensating  every  slaveholder  who  did  not  actually  or  constructively 
participate  iu  the  Rebellion. 


CONFISCATION   OF   ENEMY'S   PROPERTY.  947 

enemy.^  As  was  said  in  Mrs.  Alexander's  case  and  reiterated 
in  Young  v.  United  States,  "  the  right "  (of  capture  or  confis- 
cation) *'  may  now  be  regarded  as  substantially  restricted  to 
especial  cases  dictated  by  the  necessary  operations  of  the  war, 
and  as  excluding  in  general  the  seizure  of  private  property 
of  specific  persons  for  the  sake  of  gain."  ^ 

The  modern  commentators  on  international  law,  including 
Kent  and  Hamilton,  hold,  for  still  stronger  reasons,  that 
debts,  choses  in  action,  and  other  property  which  has  been 
brought  into  a  country  or  acquired  there  during  peace,  can- 
not be  confiscated  on  the  occurrence  of  war  consistently  with 
the  good  faith  which  should  be  observed  among  nations ;  and 
the  just  inference  from  the  authorities  as  a  whole  is  that 
while  the  power  must  necessarily  exist,  unless  it  is  withheld 
by  the  organic  law,  it  can  rarely  be  exercised  without  produc- 
ing a  distrust  which  will  outweigh  the  temporary  gain.^ 

In  the  case  of  the  Emulous,  Story,  J.,  said,  referring  to 
Hamilton's  articles  under  the  signature  of  Camillus  :  "I  have 
been  impressed  with  the  opinion  of  a  very  distinguished 
writer  of  our  own  countrj^  on  this  subject.  I  admit  in  the 
fullest  manner  the  great  merit  of  the  argument  which  he  has 
adduced  against  the  confiscation  of  private  debts  due  to 
enemy  subjects.  Looking  to  the  measure,  not  as  of  strict 
right,  but  of  sound  policy  and  national  honor,  I  have  no  hesi- 
tation to  say  that  the  argument  is  unanswerable.  He  proves 
incontrovertibly  what  the  highest  interests  of  nations  dic- 
tate with  a  view  to  permanent  policy.     But  I  have  not  been 

^  Kent's  Com.,  Lecture  V. ;  p.  92,  Mrs.  Alexander's  Cotton,  2  Wallace, 
404;  United  States  t?.  Padelford,  9  Id.  531;  Young  v.  United  States,  97 
U.  S.  39,  59. 

2  Cotton  justly  became  an  exception  to  the  rule  during  the  late  civil 
■war,  because  it  was  impressed  by  the  Confederate  Government  and  sent 
through  blockade-runners  as  a  means  of  purchasing  arms  and  warlike 
stores.  Mrs.  Alexander's  Cotton,  2  Wallace,  404 ;  United  States  v.  Padel- 
ford, 9  Id.  531. 

8  The  Emulous,  1  GalHson,  565,  577,  579;  Brown  v.  United  States,  8 
Cranch,  110;  Wheaton's  International  Law  (by  Dana),  p.  391.  See 
Hamilton's  articles  under  the  signature  of  Camillus,  Nos.  13-23,  in  de- 
fence of  Jay's  treaty. 


948  INHABITANTS   OF  HOSTILE   TERRITORY 

able  to  perceive  the  proofs  by  which  he  overthrows  the 
ancient  principle."^ 

The  right  is  political  rather  than  ex  jure  helli^  and  depends 
on  the  discretion  of  the  government.  Property  within  the 
limits  of  the  United  States  is  under  the  protection  of  the  law 
even  when  it  belongs  to  an  enem}-,  and  cannot,  agreeably  to 
the  rule  laid  down  in  Brown  v.  United  States,  be  taken  by 
an  individual  as  prize  of  war,  or  confiscated  judicially, 
without  the  sanction  of  an  act  of  Congress.  If  no  such  law 
is  passed,  the  title  of  the  owner  remains  unaffected,  and  may 
be  asserted  on  the  return  of  peace.^ 

It  was,  notwithstanding,  decided  in  Gates  v.  Goodlow  ^ 
that  the  general  in  command  of  the  district  of  Tennessee 
during  the  civil  war,  might  well  direct  the  tenants  of  build- 
ings in  Memphis  belonging  to  persons  who  had  left  that  city 
on  the  approach  of  the  national  forces  and  "  gone  South,"  to 
pay  their  rents  to  the  ofi&cer  whom  he  appointed  as  receiver, 
and  that  the  order  was  a  defence  to  a  suit  brought  by  the  land- 
lord after  the  cessation  of  hostilities,  because  the  tenant  might 
have  been  evicted  for  a  refusal  to  obey.  Obviously  punish- 
ment could  not  be  inflicted  where  there  was  no  conviction  un- 
der the  civil,  or  breach  of  the  military  law ;  and  the  decision 
was  put  on  the  ground  that  the  property  of  the  inhabitants  of 
a  hostile  territory  may  be  taken  wherever  found,  as  a  means  of 
distressing  the  enemy  and  to  aid  in  the  prosecution  of  the 
war.  The  court  held  that  it  is  the  duty  of  a  citizen  when  war 
breaks  out  and  he  is  abroad,  to  return  without  delay ;  and  if 
it  be  a  civil  war,  and  he  is  a  resident  of  the  rebellious  section, 
he  should  leave  it  as  soon  as  possible,  and  adhere  to  the 
regularly  established  government.  If  he  remains,  he  must  be 
ranked  with  the  enemies  among  whom  he  has  fixed  his  abode. 
These  propositions  are  no  doubt  abstractly  true ;  but  it  is 
often  morally  and  physically  impossible  to  follow  the  rule 
which  they  lay  down,  and  property  ought  not  to  be  confis- 
cated for  a  failure  to  comply  where  there  is  no  other  cause. 
Were  Germany  or  England  to  adopt  such  a  measure  on  the 

1  1  Gall.  577.     See  Miller  v.  The  United  States,  11  Wallace,  268. 

2  Kent's  Com.,  Lecture  III.,  p.  60.  »  101  U.  S.  612. 


REGARDED   AS   ENEMIES.  949 

occurrence  of  hostilities  with  regard  to  the  millions  of  their 
subjects  who  are  domiciled  in  the  United  States,  it  would 
be  generally  censured  as  extreme.  Civilization  and  human- 
ity require  that  private  property  should  not  be  taken  or 
destroyed  except  on  the  ground  of  necessity,  or  where  there 
is  reason  to  apprehend  that  it  will  come  into  the  possession 
of  the  enemy.  No  such  cause  can  well  exist  with  regard  to 
money  due  to  persons  who  inhabit  a  hostile  territory,  be- 
cause it  cannot  lawfully  be  paid  until  the  return  of  peace, 
and  the  interests  of  the  debtors  is  a  sufficient  guaranty  that 
the  rule  will  be  observed.^ 

The  doctrine  of  military  government  may  readily  be  ap- 
plied in  a  foreign  war,  but  it  is  attended  with  more  difficulty 
when  the  conquered  territory  is  a  part  of  the  United  States. 
It  is  well  settled  that  a  civil  or  domestic  war  will,  during  its 
continuance,  confer  all  the  rights  and  be  attended  by  all  the 
incidents  of  a  war  between  distinct  and  independent  nations. 
One  object  of  military  government  is  to  render  the  hold  of 
the  conqueror  secure,  and  enable  him  to  set  the  seal  on  his 
success  ;  and  it  must,  therefore,  in  common  with  every  other 
recognized  means  of  war,  be  at  the  command  of  a  legitimate 
government  endeavoring  to  subdue  an  insurrection.  As  the 
army  advances  into  the  rebellious  territory  a  hostile  may  be 
replaced  by  a  loyal  magistracy,  and  a  provisional  govern- 
ment established  to  preserve  order  and  administer  justice 
until  the  courts  can  be  reopened  on  the  return  of  peace.  The 
difficulty  is  that  as  such  a  war  is  not  prosecuted  with  a  view 
to  conquest,  but  to  restore  the  normal  condition  which  the 
rebellion  interrupts,  the  right  to  employ  force  may  be  thought 
to  cease  with  the  termination  of  hostilities.  It  must  still, 
however,  be  in  the  discretion  of  the  government  to  determine 
when  the  war  is  at  an  end,  and  whether  the  insurgents  are 
sincere  in  laying  down  their  arms,  or  intend  to  renew  the  con- 
test at  the  first  favorable  opportunity  ;  and  while  this  un- 
certainty continues,  military  government  and  occupation  may 
be  prolonged  on  the  ground  of  necessity.  If  the  governments 
established  by  these  means  and  under  the  operation  of  the 

1  See  Mitchell  u.  Clark,  110  U.  S.  633.     See  post,  p.  972. 


950  JURISDICTION   OF   COURT-MARTIAL. 

Reconstruction  Acts  were  weak,  corrupt,  and  ruinous,  and 
tended  to  discord  rather  than  reconciliation,  it  does  not  affect 
the  case  viewed  as  a  question  of  military  jurisprudence. 

We  have  seen  that  a  court-martial  ordinarily  has  no  juris- 
diction over  murder,  robbery,  and  other  offences  against  the 
law  of  the  land,  even  when  committed  by  or  against  a  soldier 
or  officer  of  the  United  States,  except  for  the  maintenance  of 
discipline  and  by  virtue  of  the  rules  established  for  that  end 
in  the  articles  of  war,  and  that  the  criminal  must  be  given  up 
to  the  civil  authorities  for  trial  in  the  ordinary  course  of  law.^ 
When,  however,  the  crime  is  committed  while  the  army  is 
engaged  in  the  prosecution  of  a  campaign  beyond  the  limits  of 
the  United  States,  or  in  a  revolted  district  where  the  courts 
are  closed,  a  court-martial  may,  from  the  necessity  of  the 
case  and  the  want  of  any  other  remedy,  have  exclusive  cog- 
nizance of  offences  of  this  description,  although  their  au- 
thority is  under  these  circumstances  rather  an  exercise  of 
martial  law  than  of  military  government  in  the  strict  sense  of 
the  term  .2 

1  See  ante,  p.  938. 

2  Coleman  v.  Tennessee,  97  U.  S.  513. 

After  the  accession  of  William  and  Mary  a  standing  army  being 
found  necessary,  Parliament  retained  the  control  of  it  by  establishing  it 
for  only  a  year  at  a  time,  and  these  annual  acts  first  made  mutiny  and 
desertion  punishable  at  the  sentence  of  a  court-martial  in  time  of  peace, 
and  are  therefore  known  as  the  Mutiny  Acts.  The  earliest  of  these  was 
limited  to  persons  "being  in  their  Majesties'  service  in  the  army,  and 
being  mustered  and  in  pay  as  an  officer  or  soldier."  St.  1  W.  &  M.  c.  5, 
sect.  2.  This  clause  was  re-enacted  in  the  same  form,  thus  requiring 
both  mustering  and  pay  to  constitute  the  military  character,  until  early 
in  the  following  reign,  when  either  was  made  sufficient,  and  the  act  ex- 
tended to  "  every  person  being  in  her  Majesty's  service  in  the  army,  or 
mustered  or  in  pay  as  an  officer,  or  listed  or  in  pay  as  a  soldier."  Sts. 
6  Anne,  c.  18  (often  cited  as  5  &  6  Anne,  c.  16),  sect.  2;  7  Anne,  c.  4. 
But  within  five  years  after  the  passage  of  the  first  Mutiny  Act  a  section 
was  inserted  providing  that  no  person  should  be  "esteemed  a  listed 
soldier,  or  be  subject  to  any  of  the  pains  or  penalties  of  this  act,  or  any 
other  penalty  for  his  behavior  as  a  soldier  "  unless  he  should  before  a 
civil  magistrate  "  declare  his  free  consent  to  be  listed  or  mustered  as  a 
soldier,  before  he  should  be  listed  or  mustered  or  inserted  on  any  muster- 
roll  of  a  regiment,  troop,  or  company."    St.  5  &  6  W.  &  M.  c.  15,  sect.  2. 


JURISDICTION   OF   COURT-MARTIAL. 


961 


And  the  law  of  England  has  since  by  similar  provisions  required  either 
enlistment  by  a  military  officer,  with  full  opportunity  to  reconsider  and 
retract  in  the  case  of  a  soldier,  or  actually  being  mustered  or  commis- 
sioned in  the  case  of  an  officer,  to  subject  either  to  military  discipline ; 
allowing,  however,  the  alternative  of  being  in  pay,  to  avoid  the  necessity 
of  discussing  the  nature  of  the  engagement  or  mode  of  contracting  it. 
See  Methuen  v.  Martin,  Sayer,  107;  Grant  v.  Gould,  2  H.  Bl.  103,  104; 
1  McArthur  on  Courts  Martial,  195,  196;  Bradley  v.  Arthur,  4  B.  &  C. 
308;  Woltonv.  Gavin,  16  Q.  B.  48;  Thomson's  Military  Forces  of  Great 
Britain,  92  et  seq.  That  the  original  enlistment  of  a  recruit,  or  pay- 
ment of  money  to  him,  must  be  made  by  some  person  having  the  neces- 
sar}'  military  authority,  in  order  to  justify  forcibly  restraining  him,  is 
shown  by  the  case  in  which  a  drummer,  who  had  no  lawful  power  to 
enlist  recruits,  upon  being  urged  by  a  man  to  enlist  him,  gave  him  a 
shilling  for  that  purpose ;  the  man  afterwards  attempted  to  escape,  and 
was  opposed  by  the  drummer  and  a  private  soldier  with  him,  and  the 
latter  stabbed  one  who  was  assisting  the  escape,  and  the  twelve  judges 
held  that  he  was  liable  to  indictment  for  wilful  stabbing.  Rex  v.  Long- 
den,  Buss.  &  By.  228.  The  Articles  of  War,  reported  by  a  committee  of 
which  Adams  and  Jefferson  were  members,  and  established  by  the  Con- 
gress of  the  Confederation  in  1776,  within  three  months  after  the  Decla- 
ration of  American  Independence,  substantially  adopted  the  provisions  of 
the  English  Mutiny  Acts,  and  required  every  recruit  to  be  enlisted  by  a 
military  officer  and  taken  before  a  civil  magistrate  and  there  have  the 
Articles  of  War  read  to  him,  and  take  the  oath  of  allegiance  and  service; 
yet  allowed  the  receipt  of  pay  from  the  Government  to  be  conclusive  evi- 
dence of  enlistment,  and  declared  that  "all  officers  and  soldiers  who, 
having  received  pay,  or  having  been  duly  enlisted  in  the  service  of  the 
United  States,  shall  be  convicted  of  having  deserted  the  same,  shall  suffer 
death  or  such  other  punishment  as  by  sentence  of  a  court-martial  shall  be 
inflicted;"  and  that  these  articles  *'  are  to  be  read  every  two  months  at 
the  head  of  every  regiment,  troop  or  company,  mustered  or  to  be  mustered 
in  the  service  of  the  United  States,  and  are  to  be  duly  observed  and 
exactly  obeyed  by  all  officers  and  soldiers  who  are  or  shall  be  in  the  said 
service."  Articles  of  War  of  September  20,  1776,  sect.  3,  art.  1;  sect.  6, 
art.  1;  sect.  18,  art.  1.  2  Journals  of  Congress,  367,  369,  380.  3  John 
Adams's  Works,  83,  84.  After  all  powers  of  war  and  peace  had  been 
granted  by  the  Constitution  to  the  National  Government,  the  Congress  of 
the  United  States  established  similar  articles.  U.  S.  St.  1806,  c.  20,  arts. 
10,  20, 101,  2  U.  S.  Sts.  at  Large,  361, 362,  371.  The  oath  was  permitted 
by  the  statute  of  1806,  to  be  taken  before  the  Judge  Advocate,  and  by  the 
statute  of  1861,  c.  42,  sec.  11,  before  any  commissioned  officer  of  the 
army.  12  U.  S.  Sts.  at  Large,  289.  Taking  the  recruit  before  the  civil 
magistrate  is  thus  dispensed  with,  but  his  engagement  with  a  military 
officer  is  essential. 


952  WHEN  A  RECRUIT  BECOMES 

In  addition  to  the  power  to  raise,  support,  and  regulate  armies.  Congress 
is  vested  by  the  Constitution  with  authority  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  for  calling  them  into  the  service  of 
the  United  States  to  execute  the  laws  of  the  Union,  to  suppress  insurrec- 
tions and  repel  invasions,  and  for  governing  them  when  employed  in  the 
national  service.  Under  this  power  to  organize,  Congress  has  the  exclusive 
power  of  determining  who  shall  constitute  the  militia ;  and  all  persons 
coming  within  the  class  defined  by  Congress  are  members  of  the  militia 
without  any  act  of  their  own.  Opinion  of  Justices,  14  Gray,  614. 
Commonwealth  v.  Cushing,  11  Mass.  71.  Whitmore  v.  Sanborn,  8  Greenl. 
310.  U.  S.  St.  1862,  c.  201,  12  U.  S.  Sts.  at  Large,  507.  Signing  an 
enlistment  list  is  not  required  to  make  them  militia,  and  does  no  more 
than  ascertain  the  particular  company  in  which  they  shall  serve,  and 
perhaps  estop  the  signers  to  claim  exemption  afterwards.  Decisions  or 
statutes,  like  those  cited  by  the  defendants,  that  such  a  signing  is  evi- 
dence of  enlistment  in  a  volunteer  militia  company,  have  therefore  no 
bearing  upon  the  question  of  what  constitutes  a  soldier  of  the  United 
States.  BuUen  v.  Baker,  8  Greenl.  391.  Gen.  Sts.  c.  13,  sect.  18.  A 
nearer  analogy  may  be  found  in  the  entry  of  the  militia  into  the  service  of 
the  Union  when  called  out  by  Congress.  This  is  well  settled^  by  the 
decisions  of  the  Supreme  Court  of  the  United  States  to  be  upon  their 
arrival  at  the  place  of  rendezvous,  and  not  before.  Houston  v.  Moore, 
5  Wheat.  20,  36,  53,  61.  Martin  v.  Mott,  12  Wheat.  15.  Some  of  the 
reasons  given  by  the  justices  apply  with  great  force  to  the  case  before  us. 
•'  The  arrival  of  the  militia  at  the  place  of  rendezvous,"  said  Mr.  Justice 
Washington,  "  is  the  terminus  a  quo  the  service,  the  pay,  and  subjection 
to  the  articles  of  war  are  to  commence  and  continue.  If  the  service,  in 
particular,  is  to  continue  for  a  certain  length  of  time  from  a  certain  day, 
it  would  seem  to  follow  almost  conclusively  that  the  service  commenced 
on  that  and  not  on  some  prior  day."  5  Wheat.  20.  Mr.  Justice  Story 
added  :  "  It  would  seem  almost  absurd  to  say  that  those  men,  who  have 
performed  no  actual  service,  are  yet  to  receive  pay  ;  that  they  are  '  em- 
ployed '  when  they  refuse  to  be  employed  in  the  public  service  ;  that  they 
are  '  acting '  in  conjunction  with  the  regular  forces  or  otherwise,  when 
they  are  not  embodied  to  act  at  all,  or  that  they  are  subject  to  the  Articles 
of  War  as  troops  organized  and  employed  in  the  public  service,  when  they 
have  utterly  disclaimed  all  military  organization  and  obedience.  There 
are  the  strongest  reasons  to  believe  that  by  employment  'in  the  service,' 
or,  as  it  is  sometimes  expressed,  '  in  the  actual  service  '  of  the  United 
States,  something  more  must  be  done  than  a  mere  calling  for  of  the 
militia;  that  it  includes  some  act  of  organization,  mustering  or  marching, 
done  or  recognized. "    Id.  63. 

Attorney-General  Legare,  in  an  opinion  to  the  Secretary  of  War  in 
1841,  on  the  payment  of  the  Florida  militia,  expressed  like  views,  saying: 
"  It  is  only  when  called  out  into  actual  service  that  the  militia  are  sub- 


SUBJECT  TO  MILTTAEY  LAW.  953 

jected  to  the  exclusive  control  of  the  Federal  authorities.  Until  detach- 
ments from  it  have  been  actually  mustered  to  be  subjected  in  a  solemn 
and  authentic  form  to  the  Articles  of  War,  as  in  the  parallel  case  of  volun- 
tary enlistment,  the  body  of  the  people,  armed  and  disciplined  in  self- 
defence  (for  that  is  the  definition  of  the  militia),  stand  in  all  respects 
upon  the  same  footing  as  in  any  other  of  their  great  political  relations. 
Nor  will  anything  short  of  this  formal  dedication,  so  to  express  it,  of 
portions  of  it  to  military  responsibilities,  and  actual  embodying  of  them 
into  masses,  under  the  rules  and  regulations  of  war,  constitute  them  a 
part  of  the  Federal  army.  3  Opinions  of  Attorneys-General,  691."  Tyler 
V.  Pomeroy,  8  Allen,  485. 

In  this  instance  the  plaintiff,  who  had  signed  a  written  agreement  to 
enter  the  military  service  of  the  United  States,  was  arrested  as  a  deserter 
by  the  selectmen  of  the  town  of  Washington,  acting  as  recruiting  officers 
for  the  United  States,  taken  to  the  guard-house  and  there  confined;  and 
the  Court  held  that  he  was  entitled  to  damages. 

Whatever  the  rule  may  be  as  to  voluntary  enlistments,  Congress  may 
provide  that  a  drafted  man  shall  be  under  military  law  and  liable  to 
punishment  as  a  deserter,  as  soon  as  the  ballot  is  drawn  which  renders  him 
a  conscript  and  makes  it  his  duty  to  be  present  at  the  rendezvous  at  the 
time  prescribed  by  law.  See  Houston  v.  Moore,  5  Wheaton ;  Kessler  v. 
Lane,  45  Pa.  238,  281  ;  In  re  Spangler,  13  Mich.  298;  Antrim's  Case, 
5  Phila.  278. 


LECTURE   XLIV. 

Martial  Law  in  England,  France,  and  the  United  States.  —  It  Grows  out 
of  and  is  Limited  by  Necessity.  —  The  Validity  and  Statutory  Effect  of 
a  Declaration  of  Martial  Law.  —  Views  taken  on  this  head  in  Ex  parte 
Milligan.  —  A  State  may  equally  with  the  United  States  employ  its 
Military  Force  against  Insurgents  and  hold  them  as  Prisoners  of  War. 
—  Can  Congress  render  the  President  a  Dictator,  or  provide  that  acts 
done  under  color  of  authority  from  him  shall  not  be  Trespasses  ?  Is  a 
Causeless  Military  Order  a  justification  for  a  Trespass  or  a  breach  of 
Contract?  —  Courts-Martial  and  Military  Commissions;  their  rapid 
growth  and  extension  in  the  United  States.  —  Should  the  Prosecutor 
select  the  Judges? 

We  have  still  to  consider  martial  law.  As  a  distinct  and 
separate  head  of  jurisdiction,  it  is  unknown  to  the  common 
law,  which  lies  at  the  foundation  of  English  and  American 
jurisprudence  and  is  intolerant  of  arbitrary  power.^  The 
common  law  nevertheless  recognizes  the  doctrine  of  necessity, 
and  will  hold  every  act  justifiable  which  is  essential  to  the 
preservation  of  property  and  life.  If  this  is  true  where  indi- 
viduals are  in  question,  it  applies  a  fortiori  when  the  country 
is  menaced  with  invasion,  or  an  attempt  is  made  forcibly  to 
overthrow  the  government  on  which  the  welfare  of  all  de- 
pends.2  Under  these  circumstances  force  must  be  repelled  by 
force  ;  and  everything  will  be  lawful  which  is  necessary  to 
render  the  use  of  force  effectual.  Property  may  accordingly 
be  destroyed  to  prevent  it  from  falling  into  the  hands  of  the 
enemy,  or  seized  and  applied  to  public  use  if  there  are  no  other 

1  Grant  v.  Gould,  2  H.  Blackstone,  69,  86,  101 ;  Dicey,  Law  of  the  Con- 
stitution, 297.     See  ante,  pp  910,  921. 

2  Dicey,  Law  of  the  Constitution,  297. 


SOURCE  AND  EXTENT   OF  MARTIAL  LAW.  955 

means  at  hand  and  the  necessity  is  urgent.^  It  may,  more- 
over, in  a  case  of  imminent  peril,  be  lawful  to  place  a  town  or 
district  in  the  hands  of  the  military  authorities,  and  subject 
the  whole  population  absolutely  for  the  time  being  to  their 
orders.2  Fields  may  under  these  circumstances  be  occupied 
for  fortifications,  houses  that  would  facilitate  the  approach  of 
the  enemy  razed,  and  men  and  animals  pressed  into  the  ser- 
vice and  compelled  to  labor  in  erecting  redoubts  and  breast- 
works.^ And  it  may  be  requisite,  by  a  further  and  still 
greater  stretch  of  authority,  to  prevent  insurrection  by  the 
arrest  of  suspected  individuals  and  holding  them  in  custody 
until  the  enemy  is  repelled;  or  they  may  be  brought  to  trial 
before  a  court-martial  if  the  exigency  does  not  admit  of 
del  ay  .4 

But  these  steps  must  be  taken,  not  against  the  law,  but 
under  it,  and  subject  to  the  obligation  of  rendering  an  account 
before  a  judge  and  jury  when  the  courts  can  be  reopened 
and  the  ordinary  course  of  justice  resumed.  Prima  facie^ 
every  such  act  is  a  trespass  which  can  only  be  justified  by 
proving  that  the  circumstances  were  such  as  to  render  it  the 
duty  of  the  commanding  ofiScer  to  disregard  the  rights  of  in- 
dividuals in  view  of  the  public  safety.  To  this  extent  mar- 
tial law  is  a  part  of  the  Constitution  and  laws  of  the  United 
States ;  and  the  cases  of  Mitchell  v.  Harmony^  and  Ex  parte 
Milligan  ^  establish  that  it  cannot  be  carried  further  even  by 
the  occurrence  of  war  and  the  authority  of  an  act  of  Con- 
gress. The  right  and  duty  of  a  commander  to  do  whatever 
is  necessary  to  repel  the  enemy,  repress  sedition,  and  main- 
tain his  post,  are  thus  made  reconcilable  with  the  genius  of 
a  free  government,  because  his  conduct  may  be  brought  to 
the  test  of  a  judicial  inquiry,  and  punishment  inflicted,  or  a 

1  Respublica  v.  Sparhawk,  1  Dallas,  357  ;  Mitchell  v.  Harmony,  13 
Howard,  115.     See  ante^  pp.  910,  918. 

2  Luther  v.  Borden,  7  Howard,  146. 

«  See  The  King's  Prerogative  in  Saltpetre,  12  Coke,  63 ;  ante,  p.  908. 
*  Ex  parte  Milligan,  4  Wallace,  121,  127. 
6  13  Howard,  115.     ' 
«  4  Wallace,  121,  127. 
VOL.  II.  — 20 


956  MARTIAL  LAW  IN  FRANCE. 

recovery  had  in  damages  if  he  went  further  than  the  occasion 
imperatively  demanded.  Such  a  method  is  essentially  dif- 
ferent from  that  which  in  France  prepares  the  way  for 
despotism  by  accustoming  the  nation  to  the  idea  that  an  or- 
dinance or  proclamation  may  supersede  the  civil  tribunals 
and  render  the  order  of  a  superior  officer  a  justification  for 
any  measure,  however  extreme,  whether  it  is  or  is  not  war- 
ranted by  the  circumstances.  What  martial  law  as  thus 
interpreted  signifies,  may  be  gathered  from  the  legislation  of 
Congress  during  the  civil  war,  and  from  the  following  ex- 
tract from  the  code  which  regulates  the  French  etat  de  siege, 
as  cited  by  Mr.  Dicey  ^ ;  — 

"  Aussitot  Tetat  de  siege  declare,  les  pouvoirs  dont  I'autorit^  civile 
etait  revetue  pour  le  maintien  de  I'ordre  et  de  la  police  passent 
tout  entiers  k  I'autorite  militaire.  L'autorite  civile  continue  nean- 
moins  a  exercer  ceux  de  ces  pouvoirs  dont  l'autorite  militaire  ne  Fa 
pas  dessaisie. 

''  8.  Les  tribunaux  militaires  peuventetre  saisis  de  la  connaissance 
des  crimes  et  delits  centre  la  surete  de  la  Republique,  contre  la  con- 
stitution, contre  I'ordre  et  la  paix  pnblique,  queUe  que  soit  la  qualite 
des  auteurs  principaux  et  des  complices. 

"9.  L'autorite  militaire  a  le  droit, — (1)  De  faire  des  perquisi- 
tions, de  jour  et  de  nuit,  dans  les  domiciles  des  citoyens.  (2)  D'e- 
loigner  les  repris  de  justice  et  les  individus  qui  n'ont  pas  leur  domi- 
cile dans  les  lieux  soumis  a  I'etat  de  siege.  (3)  D'ordonner  la 
remise  des  armes  et  munitions,  et  de  proceder  a  leur  recherche  et  k 
leur  enlevement.  (4)  D'interdire  les  publications  et  les  reunions 
qu'elle  juge  de  nature  a  exciter  ou  a  entretenir  le  desordre." 

Mr.  Dicey,  in  commenting  on  these  provisions,  remarks  as 
follows :  — 

"  We  ma}'  reasonably  conjecture  that  the  terms  of  the  law  give 
but  a  faint  conception  of  the  real  condition  of  afTairs  when,  in  conse- 
quence of  tumult  or  insurrection,  Paris  or  some  other  part  of  France 
is  declared  in  a  state  of  siege,  and,  to  use  a  significant  expression 
known  to  some  Continental  countries,  *  the  constitutional  guaranties 
are  suspended.'     We  shall  hardly  go  far  wrong  if  we  assume  that 

1  Dicey,  Law  of  the  Constitution,  381.  See  Mitchell  v.  Clark,  110 
U.  S.  633. 


MARTIAL  LAW   IN   ENGLAND.  957 

during  this  suspension  of  ordinary  law  any  man  whatever  is  liable 
to  arrest,  imprisonment,  or  execution  at  the  will  of  a  military  tri- 
bunal consisting  of  a  few  officers  who  are  excited  by  the  passions 
natural  to  civil  war. 

"  Now,  this  kind  of  martial  law  is  in  England  utterlj^  unknown  to 
the  Constitution.  Soldiers  may  suppress  a  riot  as  they  may  resist 
an  invasion  ;  they  may  fight  rebels  just  as  they  might  fight  foreign 
enemies ;  but  they  have  no  right,  under  the  law,  to  inflict  punish- 
ment for  riot  or  rebellion.  During  the  effort  to  restore  peace  rebels 
may  be  lawfully  killed,  just  as  enemies  may  be  lawfully  slaughtered 
in  battle,  or  prisoners  may  be  shot  to  prevent  their  escape  ;  but  any 
execution,  independently  of  military  law,  inflicted  by  a  court-martial 
is  illegal,  and  technically  murder.  Nothing  better  illustrates  the 
noble  energy  with  which  judges  have  maintained  the  rule  of  regular 
law,  even  at  periods  of  revolutionary  violence,  than  Wolfe  Tone's 
case.  In  1798  Wolfe  Tone,  an  Irish  rebel,  took  part  in  a  French 
invasion  of  Ireland.  The  man-of-war  in  which  he  sailed  was  cap- 
tured, and  Wolfe  Tone  was  brought  to  trial  before  a  court-martial 
in  Dublin.  He  was  thereupon  sentenced  to  be  hanged.  He  held, 
however,  no  commission  as  an  English  officer,  his  only  commission 
being  one  from  the  French  Republic.  On  the  morning  when  his 
execution  was  about  to  take  place,  application  was  made  to  the 
Irish  King's  Bench  for  a  writ  of  habeas  corpus.  The  gi'ound 
taken  was  that  Wolfe  Tone,  not  being  a  military  person,  was  not 
subject  to  punishment  by  a  court-martial,  or,  in  fact,  that  the  officers 
who  tried  him  were  attempting  illegally  to  enforce  martial  law. 
The  Court  of  the  King's  Bench  at  once  granted  the  writ.  When 
it  is  remembered  that  Wolfe  Tone's  substantial  guilt  was  admitted, 
that  the  court  was  filled  with  judges  who  detested  the  rebels,  and 
that  in  1798  Ireland  was  in  the  midst  of  a  revolutionary  crisis,  it 
will  be  admitted  that  no  more  splendid  assertion  of  the  supremacy 
of  law  can  be  found  than  that  then  made  by  the  Irish  Bench." 

The  question  whether  the  principle  of  Magna  Charta  as 
declared  in  the  Petition  of  Right,  vindicated  by  the  Declara- 
tion of  Independence,  and  guaranteed  by  the  Constitution  of 
the  United  States,  shall  give  place  in  this  regard  to  the 
methods  which  have  been  despotically  introduced  on  the 
continent  of  Europe,  arose  in  Ex  parte  Milligan,  where 
the  wavering  balance  fortunately  inclined  to  the  side  of  free- 


958  MARTIAL  LAW   IN  THE  UNITED   STATES. 

dom,  although  with  a  tendency  to  oscillate  which  leaves  the 
ultimate  result  in  doubt.^ 

The  petitioner  Milligan  was  tried  by  a  court-martial  in 
Indiana  shortly  before  the  capture  of  Richmond,  and  sen- 
tenced to  death  on  the  charge  of  being  a  member  of  a  secret 
society  for  the  purpose  of  overthrowing  the  government  of 
the  United  States,  of  holding  communication  with  the  enemy, 
and  of  conspiring  to  seize  munitions  of  war  and  resist  the 
draft.  At  the  time  of  the  trial  and  condemnation  the  courts 
of  the  United  States  were  open  in  Indiana,  and  there  was  no 
pretence  that  the  accused  was  a  prisoner  of  war  or  had  actu- 
ally participated  in  the  Rebellion.  His  offence,  if  he  was 
guilty,  was  treason  or  a  criminal  conspiracy,  and  not  against 
the  laws  of  war.  The  point  before  the  court  was  whether  a 
court-martial  has  jurisdiction  under  such  circumstances  to 
try,  convict,  and  execute  a  citizen  ;  and  was  decided  in  favor 
of  the  common  law,  contrary  to  the  opinion  of  the  Chief- 
Justice  and  three  of  the  associate  justices.  Agreeably  to  the 
judgment  as  delivered  by  Mr.  Justice  Davis,  the  right  of  trial 
by  jury,  according  to  the  course  of  law,  was  secured  to  the 
citizen  by  the  Constitution.  It  had,  however,  been  contended 
that  in  a  time  of  war  a  commander  might,  if  in  his  opinion 
the  exigency  of  the  case  required  it,  suspend  all  civil  rights 
and  their  remedies  within  the  lines  of  his  military  district, 
and  could  not  be  restrained  in  the  exercise  of  this  authority 
except  by  his  superior  officer,  the  President  of  the  United 
States.  If  this  proposition  was  sound,  the  occurrence  of  hos- 
tilities converted  the  government  into  a  military  despotism. 
Happily  it  was  not  sound.  Martial  law  could  only  arise  from 
an  actual  and  present  peril  which  effectually  closed  the  courts 
and  deposed  the  civil  administration.  If  during  foreign  in- 
vasion or  civil  war  the  courts  were  actually  closed  and  it  be- 
came impossible  to  administer  justice  according  to  law,  then 
on  the  theatre  where  war  really  prevailed  there  was  a  necessity 
to  furnish  a  substitute  for  the  civil  authority  which  had  been 
overthrown ;  and  as  the  only  remaining  power  was  the  mili- 
tary, it  was  allowed  to  govern  until  the  laws  could  again  have 

1  See  Mitchell  v.  Clark,  110  U.  S.  633. 


MARTIAL  LAW  IN  THE  UNITED   STATES.  959 

their  free  and  unobstructed  course.  As  necessity  created  the 
rule,  so  it  limited  its  duration ;  and  military  government  could 
not  be  continued  after  the  courts  were  reinstated,  without  a 
gross  usurpation  of  power.  Martial  rule  could  never  exist 
where  the  courts  were  open  and  in  the  proper  and  unob- 
structed exercise  of  their  functions.  It  was  also  confined  to 
the  locality  of  actual  war ;  and  it  was  erroneous  to  imagine 
that  because  it  was  properly  enforced  during  the  Rebellion 
in  Virginia,  where  the  national  authority  was  overturned  and 
the  federal  tribunals  silenced  or  expelled,  it  could  obtain  in 
Indiana',  where  that  authority  was  never  disputed,  and  justice 
took  its  accustomed  way.  And  so  in  the  case  of  a  foreign 
invasion,  martial  law  might  be  a  necessity  in  one  State  when 
it  would  be  mere  lawless  violence  in  another. 

These  principles  were  established  in  England  under  Magna 
Charta,  and  Parliament  had  as  far  back  as  the  first  year  of 
the  reign  of  Edward  III.,  in  reversing  the  attainder  of  the  Earl 
of  Lancaster  because  he  could  have  been  tried  by  the  courts 
of  the  realm,  declared  "  that  in  time  of  peace  no  man  ought 
to  be  adjudged  to  death  for  treason  or  any  other  offence 
without  being  arraigned  and  held  to  answer,  and  that  regu- 
larly when  the  king's  courts  are  open  it  is  a  time  of  peace 
and  for  legal  judgment."  From  that  period  down  to  our 
own  times  the  right  to  exercise  martial  law  on  any  other 
ground  than  that  of  actual  and  imminent  peril  was  condemned 
by  all  English  jurists  of  reputation  as  contrary  to  the  funda- 
mental laws  of  the  land  and  subversive  of  the  liberties  of  the 
subject. 

The  founders  of  the  Republic  had  been  equally  clear  that 
arbitrary  power,  either  in  peace  or  war,  and  in  war  even 
more  than  in  peace,  was  hostile  to  the  freedom  of  a  republic. 
They  had  consequently  provided  certain  safeguards  which 
were  clearly  written  in  the  Constitution.  The  provisions  of 
that  instrument  were  too  plain  and  direct  to  leave  room  for 
misconstruction  or  admit  a  doubt  as  to  their  true  meaning. 
It  declared  that  the  trial  of  all  crimes,  except  in  case  of  im- 
peachment, should  be  by  jury  ;  and  additional  guaranties  were 
given  by  the  Fourth,  Fifth,  and  Sixth  Articles  of  Amend- 


960  CONGRESS   CANNOT 

ment.  The  Fourth  proclaimed  the  right  of  the  citizen  to  be 
secure  in  his  person  and  effects  against  unreasonable  search 
and  seizure,  and  directed  that  a  warrant  should  not  issue 
without  proof  or  probable  cause,  supported  by  oath  or  affirma- 
tion. The  Fifth  declared  that  no  person  should  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime  unless  on 
presentment  by  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia  when  in  service  in  time 
of  war  or  actual  danger  ;  nor  should  any  person  be  deprived 
of  life,  liberty,  or  property  without  due  process  of  law.  The 
right  to  a  trial  by  a  jury  was  still  further  fortified  by  the  Sixth 
Amendment,  which  provided  that  "  in  all  criminal  prosecu- 
tions the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jury  of  the  State  and  district  where  the 
crime  shall  have  been  committed,  which  district  shall  have 
previously  been  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation,  to  be  confronted  with 
the  witnesses  against  him,  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance 
of  counsel  for  his  defence."  Time  had  shown  the  discernment 
of  our  ancestors ;  for  even  these  provisions,  expressed  in  such 
plain  English  words  that  they  could  not  be  misunderstood, 
were  now,  after  the  lapse  of  more  than  seveiity  years,  sought 
to  be  evaded.  Milligan  had  not  been  mustered  into  the 
service  of  the  United  States,  he  was  not  a  prisoner  of  war,  it 
was  not  alleged  that  any  overruling  necessity  existed  pre- 
cluding the  action  of  the  civil  courts  and  justifying  a  recourse 
to  martial  law.  On  the  contrary,  soon  after  the  military 
tribunal  which  convicted  him  adjourned,  the  circuit  court  of 
the  United  States  sat  in  the  same  building  and  peacefully 
transacted  its  business.  There  was  consequently  no  justifica- 
tion for  denying  him  the  trial  before  a  jury  and  in  the  due 
course  of  law  which  the  Constitution  expressly  secured.  The 
writ  of  habeas  corpus  had,  it  was  true,  been  suspended  by  the 
President  and  Congress.  This  was  the  only  safeguard  for 
personal  freedom  that  could  be  withheld  by  the  President  or 
by  Congress,  even  in  time  of  war.  The  sole  effect  of  such  a 
suspension  is  to  enable  the  government  to  hold  the  persons 


ESTABLISH  MAETIAL  LAW. 


961 


•whom  it  has  arrested  until  they  can  be  brought  before  a 
court  and  jury,  consistently  with  the  public  safety.  The 
Constitution  goes  no  farther.  It  does  not  say  that  when  the 
writ  of  habeas  corpus  is  temporarily  withdrawn,  the  citizen 
may  be  tried  and  executed  by  martial  law. 

Such  was  the  decision  of  the  majority  of  the  court ;  the 
minority,  consisting  of  the  Chief-Justice  and  of  Wayne, 
Miller,  and  Swayne,  J  J.,  arrived  at  the  same  conclusion,  but 
on  different  grounds.  In  their  opinion,  as  delivered  by  the 
Chief-Justice,  the  prisoner  must  be  discharged,  because  the 
act  which  authorized  the  suspension  of  the  habeas  corpus  also 
provided  that  lists  of  all  persons  being  citizens  of  States  in 
which  the  administration  of  the  laws  remained  unimpaired  in 
the  federal  courts,  and  who  were  then  held,  or  who  might 
be  thereafter  held,  as  prisoners  of  the  United  States  under 
the  authority  of  the  President,  otherwise  than  as  prisoners 
of  war,  should  be  furnished  to  the  judges  of  the  circuit  and 
district  courts.  These  lists  were  to  contain  the  names  of 
every  one  residing  within  the  respective  jurisdictions  charged 
with  a  violation  of  the  national  laws  ;  and  it  was  further  re- 
quired, in  cases  where  the  grand  jury  in  attendance  upon  any 
of  the  said  courts  should  terminate  its  session  without  pro- 
ceeding by  indictment  or  otherwise  against  any  prisoner  named 
in  the  Hst,  that  the  court  should  forthwith  make  an  order  that 
such  person  should  be  brought  before  them  and  be  discharged. 
The  petitioner's  case  was  within  the  precise  letter  and  intent 
of  the  act,  unless  it  could  be  said  that  he  was  not  imprisoned 
by  authority  of  the  President ;  and  no  such  allegation  had 
been  made  on  behalf  of  the  government. 

The  Chief-Justice  and  the  judges  who  agreed  with  him 
were,  however,  unable  to  concur  with  the  majority  of  the 
court  that  the  military  commission  held  in  Indiana  was  not 
only  unauthorized  by  Congress,  but  that  it  was  not  in  the 
power  of  Congress  to  authorize  it,  and  were,  on  the  contrary, 
of  opinion  that  Congress  might  establish  martial  law  or 
authorize  the  trial  of  citizens  by  a  military  tribunal  in  any 
part  of  the  Union  in  time  of  war ;  or  if  such  acts  were  done 
without  their  authority,  might  ratify  them  afterwards,  and 


962  CONGRESS   CANNOT 

shield  the  oflQcers  who  composed  the  commission  from  liability 
to  the  courts  of  common  law.  As  they  contended,  the  sus- 
pension of  the  habeas  corpus  authorized  the  President  to 
arrest,  as  well  as  to  detain,  and  might  justify  a  trial  and  con- 
viction by  a  military  commission  in  States  where  the  civil 
courts  were  still  open.  The  Constitution  provided  for  mili- 
tary government  as  well  as  civil  government ;  and  the  civil 
safeguards  of  the  Constitution  did  not  apply  in  cases  within 
the  proper  sphere  of  military  government.  Congress  had 
power  to  raise  and  support  armies,  to  make  rules  for  the  gov- 
ernment of  the  land  and  naval  forces,  and  to  provide  for  the 
government  of  such  part  of  the  militia  as  might  be  in  the 
service  of  the  United  States.  This  power  was  not  abridged 
by  the  Fifth  or  any  other  amendment.  It  was  not  necessary 
to  attempt  any  precise  definition  of  the  boundaries  within 
which  it  was  confined ;  but  cases  might  easily  be  imagined 
where  citizens  conspiring  or  attempting  the  destruction  of 
the  national  forces  might  be  subjected  by  Congress  to  mili- 
tary trial  and  punishment  in  the  just  exercise  of  this  un- 
doubted constitutional  power.  But  this  was  not  the  only 
foundation  of  the  right  of  Congress  to  authorize  such  a 
military  commission  as  had  been  held  in  Indiana.  They  had 
the  power  not  only  to  raise  and  govern  armies,  but  to  declare 
war.  They  had  therefore  the  power  to  provide  by  law  for 
carrying  on  war.  This  power  necessarily  extended  to  all 
legislation  essential  to  the  prosecution  of  war  with  vigor  and 
success,  and  that  did  not  interfere  with  the  command  of  the 
forces  and  the  conduct  of  campaigns.  Congress  could  not 
plan  a  campaign,  nor  could  the  President,  or  any  commander 
under  him,  institute  tribunals  for  the  trial  of  soldiers  or  civil- 
ians, unless  there  was  a  controlling  necessity  which  justified 
what  it  compelled,  or  would  call  for  an  act  of  indemnity 
from  the  justice  of  the  legislature. 

It  was  not  meant  to  assert  that  Congress  could  establish 
and  apply  the  laws  of  war  when  war  had  not  been  declared 
or  did  not  exist.  The  contention  was  that  when  the  nation 
was  involved  in  war,  when  some  portions  of  the  country 
were  invaded,  and  all  might  be  assailed,  it  was  within  the 


ESTABLISH  MARTIAL  LAW.  963 

power  of  Congress  to  determine  in  what  States  and  districts 
such  imminent  public  danger  existed  as  to  justify  the  estab- 
lishment of  military  tribunals  for  the  trials  of  crimes  and 
offences  against  the  discipline  or  security  of  the  army  or 
against  the  public  safety.  It  could  not  be  doubted  that  in 
such  a  time  of  public  danger  Congress  had  power  under  the 
Constitution  to  provide  for  the  organization  of  a  military 
commission,  and  for  the  trial  by  that  commission  of  persons 
engaged  in  a  conspiracy  to  aid  the  enemy  and  against  the 
government.  That  the  federal  courts  were  open,  might  be 
a  reason  why  Congress  should  not  exercise  the  power,  but 
could  not  deprive  Congress  of  the  right  to  exercise  it.  Those 
courts  might  discharge  their  functions  freely  and  without 
disturbance,  and  yet  be  wholly  incompetent  to  avert  the 
threatened  danger  and  punish  the  conspirators  with  prompti- 
tude and  certainty. 

We  may  regret  that  the  court  should  have  been  divided  on 
a  subject  of  so  much  importance  ;  but  the  opinion  of  the 
majority  would  seem  to  be  in  entire  conformity  with  the 
letter  and  spirit  of  the  Constitution.  There  is  nothing  in 
that  instrument  to  indicate  that  the  guaranties  which  it 
affords  for  life  or  property  are  to  cease  on  the  occurrence  of 
hostilities.  A  contrary  design  is  manifested  unmistakably 
with  the  utmost  clearness.^ 

"  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury."  Such  is  the  explicit  language  of  the  Con- 
stitution (Art.  III.  sect.  2).  The  Fourth  Amendment  guar- 
antees the  right  of  the  people  to  be  secure  in  their  persons, 
papers,  houses,  and  effects  against  unreasonable  searches 
and  seizures,  and  that  no  warrant  shall  issue  except  upon 
probable  cause,  supported  by  oath  or  affirmation.  By  the 
Fifth  Amendment  "  no  person  shall  be  held  to  answer  for 
a  capital  or  otherwise  infamous  crime,  unless  on  a  present- 
ment or  indictment  of  a  grand  jury,  except  in  cases  aris- 
ing in  the  land  and  naval  forces,  or  in  the  militia  when  in 
actual  service,  in  time  of  war  or  public  danger,  nor  shall  any 
person  ...  be  deprived  of  life,  liberty,  or  property  without 

1  See  Luther  v.  Borden,  6  Howard,  167;  ante,  pp.  124,  507,  862. 


964  MARTIAL   LAW  MAY  BE  EXERCISED 

due  process  of  law."  That  there  may  be  no  room  for  mis- 
take or  evasion,  the  Sixth  Amendment  reiterates  and  en- 
forces the  constitutional  provision  by  a  declaration  that  in 
all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial  by  an  impartial  jury  within 
the  State  wherein  the  crime  shall  have  been  committed. 
These  provisions  —  save  in  two  particulars,  which  will  be 
presently  adverted  to  —  are  absolute,  without  let  or  qualifi- 
cation. If  the  intention  had  been  to  restrict  them  to  seasons 
of  peace,  it  would  have  been  so  stated.  This  is  not  left  to 
inference,  but  appears  from  the  exception  of  "  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual 
service  in  time  of  war  or  public  danger."  The  power  which 
the  minority  of  the  court  treated  as  extending  to  all  persons 
is  consequently  denied  in  terms  as  to  all  persons  who  are  not 
in  the  army  or  nav}^  or  militiamen  in  actual  service.  So  the 
final  clause  of  the  provision  with  regard  to  the  habeas  corpus 
which  reverses  the  action  of  the  first  by  declaring  in  effect 
that  the  writ  may  be  suspended  during  insurrection  or  inva- 
sion, would  not  have  been  added  by  men  who  knew  that  they 
had  given  an  authority  under  which  that  writ  and  every 
other  security  for  freedom  might  be  set  aside  during  war. 
By  providing  that  a  particular  remedy  may  be  suspended  in 
the  case  of  extreme  and  urgent  peril,  the  Constitution  plainly 
indicates  that  all  other  remedies  are  to  remain  in  full  force 
and  virtue.  This  does  not  conflict  with  the  rule  that  the 
means  necessary  to  repel' the  enemy  or  subdue  an  insurrec- 
tion may  be  employed,  although  they  involve  a  deprivation  of 
the  rights  of  the  citizen  ;  for  under  these  circumstances  the 
act  is  done,  not  under  a  despotic  and  irresponsible  power 
conferred  by  statute,  but  by  virtue  of  an  authority  growing 
out  of  the  circumstances,  that  may  be  tested  by  the  com- 
mon law. 

In  saying  that  martial  law  cannot  arise  from  a  threatened 
invasion,  Mr.  Justice  Davis  may  have  gone  too  far,  and  un- 
duly limited  the  right  of  the  military  authorities  to  provide 
for  the  safety  of  the  community.  Nothing  short  of  necessity 
can  justify  a  recourse  to  martial  law  ;  but  such  a  necessity 


ON  THE  GROUND  OF  NECESSITY. 


965 


may  exist  before  the  blow  actually  falls.  An  army  assembled 
in  Canada  might  necessitate  extraordinary  measures  of  pre- 
caution on  the  northern  frontier,  although  no  hostile  force  had 
crossed  the  line.  So  the  able-bodied  population  of  Philadel- 
phia might  have  been  forcibly  enrolled  to  provide  for  the  de- 
fence of  the  city  in  the  summer  of  1863  while  Lee's  army  was 
still  in  Maryland  and  before  he  entered  Pennsylvania.  All 
that  can  be  said  with  certainty  is  that  there  must  be  reasonable 
and  probable  cause  for  believing  in  the  imminency  of  a  peril 
that  suspends  the  ordinary  rules,  which  must  be  determined 
at  the  time  by  the  commander,  but  may  be  reconsidered  sub- 
sequently by  a  court  and  jury,  who  will  rarely  look  unfavo- 
rably on  any  man  who  at  a  critical  period  has  acted  in  good 
faith  for  the  protection  of  the  community.^  Whatever  may  be 
thought  on  this  point,  there  is  every  reason  for  holding,  with 
the  majority  of  the  court,  that  when  necessity  gives  the  right, 
legislation  is  superfluous ;  when  it  does  not,  the  right  cannot 
be  conferred  legislatively  by  Congress. 

If  we  now  turn  to  the  opinion  of  the  minority,  it  will  be 
found  contrary  to  the  books  of  the  common  law,  and  at 
variance  with  the  plain  English  words  of  the  Constitution 
and  Amendments.  Seldom  has  a  broader  superstructure  beea 
raised  on  a  narrower  basis.  The  argument  may  deserve  the 
praise  of  ingenuity,  and  will  probably  be  cited  whenever  a 
dominant  party  is  in  want  of  reasons  for  the  exercise  of  arbi- 
trar}^  power.  Congress  may  make  rules  and  regulations  for 
the  government  of  the  land  and  naval  forces,  and  of  militia- 
men when  in  actual  service ;  therefore  Congress  may  place 
persons  who  do  not  belong  to  the  land  and  naval  forces,  and 
who  are  not  enrolled  or  serving,  under  military  government. 
Certain  persons  —  namely,  soldiers,  sailors,  and  militiamen 
mustered  into  the  service  of  the  United  States  —  are  ex- 
cepted from  the  operation  of  the  Fifth  Amendment ;  there- 
fore all  persons  may,  during  insurrection  or  invasion,  be 
denied  the  benefit  of  that  amendment.     The  army  may  be 

^  In  no  instance,  so  far  as  I  am  aware,  has  an  English  or  American, 
jury  allowed  an  officer  or  soldier  to  suffer  for  acts  done  with  any  shadow 
of  right  to  repel  invasion  or  quell  a  mob. 


966  MARTIAL  LAW  AS  SANCTIONED 

SO  constituted  and  organized  as  to  defend  the  citizen ;  con- 
sequently the  army  may  be  authorized  to  try  and  execute  the 
citizen.  In  other  words,  an  authority  to  forge  a  weapon  for 
my  protection  is  an  authority  to  turn  the  weapon  agiiinst  me. 
The  Chief-Justice  can  hardly  be  said  to  have  been  more 
successful  in  the  effort  to  deduce  the  right  to  arrest  and  exe- 
cute summarily,  without  sufficient  cause  shown  by  oath  or 
affirmation,  or  a  trial  by  jury,  from  the  authority  to  declare 
war  and  suspend  the  writ  of  habeas  corpus.  The  suspension 
of  the  habeas  corpus  does  not  authorize  the  President  to  make 
arrests.  His  authority  in  this  regard  is  derived  from  his  office 
as  chief  magistrate  and  the  obligation  to  take  care  that  the 
laws  be  faithfully  executed.  From  whatever  source  such  an 
authority  may  come,  it  must  be  exercised  in  conformity  with 
the  Fourth  Amendment  —  that  no  warrant  shall  issue  but 
upon  probable  cause,  supported  by  oath  or  affirmation — and 
the  doctrine  of  the  common  law  that  the  cause  must  be  set 
forth  in  the  writ,  unless  there  is  the  necessity  for  immediate 
action  which  justifies  a  constable  in  apprehending  without 
a  warrant  or  a  complaint  under  oath  before  a  magistrate.^ 
To  contend  that  the  suspension  of  a  single  guaranty  author- 
izes a  disregard  of  every  other,  is  an  abuse  of  terms.^ 

1  See  ante,  pp.  784,  909. 

2  Oppressive  as  the  suspension  of  the  habeas  corpus  act  seems  to  have 
been  in  1817  in  England,  it  was  shown  by  the  report  of  the  committee 
appointed  by  the  House  of  Lords  that  no  one  had  been  arrested  except 
on  information  given  under  oath,  and  none  on  the  evidence  of  informers 
without  corroboration  by  other  undoubted  testimony.  2  May's  Const. 
Hist.  269. 

It  is  to  the  idea  that  when  the  writ  of  habeas  corpus  is  suspended  all  the 
forms  of  law  are  gone,  and  men  may  be  imprisoned  on  suspicion,  or  the 
denunciations  of  informers,  that  we  may  ascribe  the  numerous  arbitraiy 
arrests  under  Mr.  Lincoln's  administration.  There  certainly  never  was  a 
time  when  the  life  of  a  nation  was  in  greater  peril,  or  when  the  measures 
adopted  for  its  preservation  should  be  more  leniently  judged.  But  there 
is  little  doubt  that  the  disregard  shown  for  individual  rights  tended  to  dis- 
credit a  cause  which  had  as  its  watchword  that  no  man  should  be  held  in 
bondage  except  for  some  definite  cause,  established  in  due  course  of  law.  It 
would  be  too  much  to  afl&rm  that  all  the  arrests  then  made  were  ground- 
less.    But  few  persons  who  knew  the  temper  of  the  people  will  deny  that 


BY  THE   COMMON   LAW.  967 

Still  less  can  a  charter  for  an  unlimited  authority  in  Con- 
gress be  found  in  the  right  to  declare  war.  Such  a  declara- 
tion carries  with  it  a  right  to  use  all  the  means  that  are 
incident  to  war  as  defined  by  the  law  of  nations,  and  Con- 
gress cannot  enlarge  the  power  or  authorize  any  act  which  is 
contrary  to  the  Constitution  as  amended.  War  may  come 
into  existence  through  their  fiat,  but  it  is  for  the  judiciary  to 
say  how  far  it  enlarges  the  authority  of  the  army  over  the 
citizen,  or  warrants  the  deprivation  of  life,  liberty,  or  property 
without  due  process  of  law.  If  .exigencies  occur  in  the  course 
of  warlike  operations  which  cannot  be  met  without  the  exer- 
cise of  military  force  over  persons  who  are  not  in  the  military 
or  naval  service,  or  in  arms  against  the  United  States,  the 
commander  must  take  the  responsibility  of  deciding  what  the 
necessity  requires,  with  a  just  confidence  that  his  conduct  will 
not  be  viewed  with  an  unfavorable  eye  should  the  case  sub- 
sequently be  brought  into  court.  Such  a  subordination  of  the 
military  to  the  civil  power  leaves  the  hands  of  the  general 
free,  without  exonerating  him  from  responsibility,  and,  as 
English  history  proves,  is  not  incompatible  with  a  victorious 
exercise  of  force  against  foreign  and  domestic  enemies.  It  was 
resolutely  maintained  during  the  season  of  extreme  peril  that 
followed  the  Revolution  of  1688,  and  is  guaranteed  by  the 
amendments  of  the  Constitution  of  the  United  States  ;  and 
there  is  nothing  in  the  teachings  of  experience  to  warrant  the 
belief  that  it  should  be  laid  aside,  or  that  a  nation  cannot  de- 
fend itself  without  being  placed  under  despotic  rule. 

If  the  view  taken  in  these  pages  is  correct,  martial  law  as 
it  exists  and  may  be  enforced  in  the  United  States  is  as  much 
a  part  of  the  common  or  municipal  law,  as  the  authority  of  the 
sheriff  to  use  forcible  measures  for  the  suppression  of  a  riot, 
or  that  of  the  mayor  of  a  town  to  destroy  a  building  in  order 
to  arrest  the  spread  of  a  conflagration.  The  civil  courts  may 
remain  open,  and  successfully  administer  justice  in  a  besieged 

many  of  them  were  frivolous,  and  tended  to  alienate  the  friends  rather 
than  repress  the  enemies  of  the  Union ;  and  the  effect  was  to  alarm  public 
opinion  and  endanger  the  success  at  the  polls  on  which  towards  the  close 
of  the  contest  all  else  depended. 


968  INSURGENTS   MAY    BE   HELD 

city,  or  district  menaced  with  invasion,  without  precluding  the 
right  of  the  military  commander  to  impress  property  for 
the  public  service,  or  enroll  the  citizens  compulsorily  for  the 
common  defence.  His  authority  arises  from  the  exigency, 
and  varies  with  it.  It  may  be  unlimited  to-day,  and  vanish 
to-morrow  with  the  disappearance  of  the  danger  which  called 
it  into  being.  Every  such  act  on  his  part  must  be  judged 
severally  by  the  necessity  for  it  or  by  what  he  had  reasonable 
and  probable  cause  to  believe  was  necessary.  Martial  law  is 
not,  therefore,  law  in  the  proper  sense  of  the  term,  which  im- 
plies a  rule  operating  uniformly,  applicable  to  all  men  who 
fall  within  its  terms  and  through  an  entire  territory.  It  is 
much  more  nearly  an  authority,  command,  or  power  derived 
from  the  function  of  the  President  as  commander-in-chief, 
and  to  be  exercised  according  to  a  sound  discretion,  which, 
though  not  clothed  with  legal  forms,  is  3^et  subordinate  to  the 
law,  and  accountable  to  it  for  any  needless  invasion  of  per- 
sonal liberty  or  private  right.  To  refer  such  an  authority  to 
the  legislature  or  require  their  sanction  for  its  exercise,  is 
therefore  to  limit  it  where  it  requires  scope,  and  enlarge  it 
where  it  requires  limitation. 

Military  action  should  be  prompt,  meeting  the  danger  and 
overcoming  it  on  the  instant ;  it  cannot,  therefore,  afford  to 
wait  on  the  deliberations  of  a  legislative  assembly.  On  the 
other  hand,  an  act  of  Congress  authorizing  the  exercise  of 
martial  law  in  a  State  or  district  gives  the  military  com- 
mander a  larger  charter  than  the  end  in  view  requires  or  is 
consistent  with  freedom.  Armed  with  the  sanction  of  posi- 
tive law,  he  need  no  longer  consider  whether  his  acts  are  jus- 
tified by  necessity.  He  may  abuse  the  undefined  power 
intrusted  to  his  hands,  and  destroy  life,  liberty,  and  property 
without  the  shadow  of  an  excuse,  on  an  idle  report  or  a  rumor 
that  will  not  bear  the  light.^ 

The  case  of  Luther  v.  Borden  ^  has  sometimes  been  re- 
garded as  sustaining  the  doctrine  that  martial  law  may  be 
authorized  by  the  legislature  whether  it  is  or  is  not  justi- 

1  See  Mitchell  v.  Clark,  110  U.  S.  633;  post,  pp.  972,  978. 

2  7  Howard,  1. 


AS  PRISONERS  OP   WAR.  %9 

fied  by  the  necessity  of  the  case.  The  plaintiff,  who  was  a 
citizen  of  Massachusetts,  brought  an  action  of  trespass  quare 
clausum  fregit  against  the  defendants  who  were  citizens  of 
Rhode  Island,  for  breaking  and  entering  his  house  in  the 
latter  State.  The  defendants  pleaded  that  at  the  time  when, 
etc.,  there  was  an  armed  insurrection  to  overthrow  the  gov- 
ernment of  the  State  of  Rhode  Island ;  that  in  self-defence 
martial  law  was  declared  by  the  legislature  of  the  State ; 
that  the  defendants  were  enrolled  in  the  State  militia,  and 
under  orders  of  their  commanding  officer  attempted  to  arrest 
the  plaintiff,  who  was  aiding  and  abetting  the  insurrection, 
and  in  so  doing  unavoidably  committed  the  acts  complained 
of.  The  case  was  brought  before  the  Supreme  Court  on  a 
writ  of  error.  One  of  the  points  decided  by  that  tribunal  was 
that  the  question  whether  the  government  which  the  insur- 
gents sought  to  overthrow  was  the  legitimate  government, 
was  a  political  question  which  did  not  form  a  fit  subject  for 
judicial  consideration.^  It  had  been  decided  by  the  Pres- 
ident, to  whom  such  subjects  belonged  under  the  Consti- 
tution, and  his  decision  could  not  be  reviewed  by  the  court. 
The  remaining  point  was  whether  the  existence  of  the  insur- 
rection and  the  orders  of  the  commanding  officer  were  a 
justification  for  the  acts  committed  by  the  defendants. 
Clearly  a  State  could  not  establish  a  military  government  per- 
manently. Such  a  government  would  not  be  republican,  and 
should  be  overthrown  by  Congress.  But  a  State  might  as 
clearly  use  the  military  power  to  put  down  an  armed  insur- 
rection too  strong  to  be  controlled  by  the  civil  authorities. 
This  power  was  essential  to  every  government,  and  must  be 
possessed  by  the  States.  Martial  law  might  be  declared 
under  these  circumstances,  and  the  officers  engaged  in  the 
military  service  of  the  State  might,  under  the  authority  which 
it  gave,  arrest  every  one  whom  they  had  reasonable  grounds 
to  believe  was  a  party  to  the  insurrection.  Without  the 
right  to  do  this,  martial  law  and  the  military  array  of  the 
State  would  be  a  mere  parade.  No  more  force,  however, 
could  be  used  than  was  necessary  to  accomplish  the  object ; 

1  See  ante,  p.  124. 


970  CAN  CONGEESS  RENDER 

and  if  the  power  was  exercised  for  the  purpose  of  oppres- 
sion, or  an  injury  wilfully  inflicted  on  person  or  property,  the 
person  who  did  or  commanded  the  wrong  would  undoubt- 
edly be  answerable. 

It  is  obvious  that  neither  the  circumstances  of  this  case  nor 
the  decision  of  the  court  justify  the  idea  that  a  State  can 
establish  martial  law  in  the  sense  contended  for  by  the 
minority  of  the  court  in  Ex  parte  Milligan.^  An  armed  body 
of  insurgents  had  taken  the  field  for  the  purpose  of  over- 
throwing the  State  government.  The  State  might  therefore 
lawfully  use  military  force  to  subdue  the  insurgents.  In 
other  words,  it  might  wage  war ;  and  the  power  to  wage  war 
implies  a  power  to  declare  it.  The  declaration  of  martial 
law  was  virtually  a  declaration  of  war  against  the  persons 
who  were  levying  war  on  the  State,  authorizing  the  use  of 
every  lawful  means  of  war,  even  to  the  destruction  of  life, 
and  therefore  necessarily  conferring  an  authoritj^  to  capture 
or  inflict  any  lesser  injury  in  the  due  prosecution  of  hos- 
tilities. 

The  gist  of  the  plea  in  this  aspect  was  the  averment  that 
the  plaintiff  was  aiding  and  abetting  the  insurrection.  If  so, 
he  was  a  public  enemy  of  the  State,  who  might  lawfully  be 
taken  and  imprisoned  by  virtue  of  the  right  of  war.  But  it 
does  not  follow  that  the  legislature  did  or  could  sanction  the 
exercise  of  military  power  over  persons  who  were  not  enemies, 
which  is  the  essence  of  martial  law,  or  that  they  did  or 
could  authorize  a  citizen  to  be  tried  and  condemned  to  death 
militarily,  as  was  contended  for  in  Ex  parte  Milligan.  On 
the  contrary,  Chief-Justice  Taney  explicitl}'  declared  that 
the  measure  of  the  necessity  was  the  limit  of  the  right,  that 
no  more  force  should  be  used  than  was  requisite,  and  that  if 
an  injury  was  needlessly  inflicted,  the  wrong-doer  would 
be  responsible  to  the  courts. 

Despite  the  judgment  in  Ex  parte  Milligan,  the  Supreme 
Court  of  the  United  States  recently  countenanced  the  act  of 
March  3,  1863,  which  virtually  established  martial  law,  by 
arming  the  President  and  the  officers  under  his  command 

1  4  Wallace,  21,  29.    See  ante,  p.  962. 


THE  PEESIDENT  A   DICTATOR?  971 

with  a  dictatorial  power  to  deprive  any  man  whom  they  re- 
garded as  inimical,  of  liberty  and  property.  Agreeably  to  the 
fourth  section,  "  any  order  of  the  President,  or  under  his  au- 
thority, made  at  any  time  during  the  existence  of  the  present 
Rebellion,  shall  be  a  defence  in  all  courts  to  any  action  or 
prosecution,  civil  or  criminal,  pending  or  to  be  commenced, 
for  any  search,  seizure,  arrest,  or  imprisonment  made,  done, 
or  committed,  or  acts  omitted  to  be  done  under  and  by  virtue 
of  such  order,  or  under  color  of  any  law  of  Congress  ;  and 
such  defence  may  be  made  by  special  plea,  or  under  the 
general  issue." 

The  seventh  section  provided  "  that  no  suit  or  prosecution, 
civil  or  criminal,  shall  be  maintained  for  any  arrest  or  im- 
prisonment made,  or  other  trespasses  or  wrongs  done  or  com- 
mitted, or  act  omitted  to  be  done,  at  any  time  during  the 
present  Rebellion,  by  virtue  or  under  color  of  any  authority 
derived  from  or  exercised  by  or  under  the  President  of  the 
United  States,  or  by  or  under  any  act  of  Congress,  unless  the 
same  shall  have  been  commenced  within  two  years  next  after 
such  arrest,  imprisonment,  trespass,  or  wrong  may  have  been 
done  or  committed,  or  act  may  have  been  omitted  to  have 
been  done." 

This  statute  assumed  that  Congress  may  provide  that  an 
order  from  the  President,  or  under  his  authority,  shall  be  a 
justification  for  any  search,  seizure,  arrest,  or  imprisonment 
done  or  committed  by  virtue  of  such  order,  or  under  color  of 
any  law  of  Congress,  irrespective  of  the  circumstances,  and 
whether  these  did  or  did  not  require  the  exercise  of  arbitrary 
power.  It  operated  as  a  declaration  of  martial  law  through- 
out the  length  and  breadth  of  the  United  States,  by  author- 
izing any  commanding  oflBcer,  of  whatever  grade,  to  arrest 
and  imprison  the  citizen  or  despoil  his  goods,  irrespective  of 
the  circumstances,  or  the  necessity  which  alone  can  justify 
an  arbitrary  deprivation  of  the  natural  rights  guaranteed 
by  the  Constitution  of  the  United  States.  It  was  therefore 
directly  in  the  teeth  of  the  principles  laid  down  in  Ex  parte 
Milligan,  and  may  hereafter  serve  as  a  foundation  on  which 
to  erect  a  government  by  the  sword. 

VOL.  II.  —  21 


972  ACTS   DONE   UNDER   COLOR  OF 

In  Bean  v.  Beck  with  ^  the  court  restricted  the  injurious 
tendency  of  the  statute  by  holding  that  it  applied  solely  to 
acts  done  under  an  authority  given  specifically  by  the  Presi- 
dent, which  must  be  set  forth  in  pleading,  and  did  not  throw 
the  reins  on  the  neck  of  every  brigadier  or  colonel  in  charge 
of  a  post  or  district.  "  Assuming  for  this  case,"  said  Field,  J., 
"  that  these  statutes  are  not  liable  to  any  constitutional  ob- 
jection, they  do  not  change  the  rules  of  pleading  when  the 
defence  is  set  up  in  a  special  plea,  or  dispense  with  the 
exhibition  of  the  order  or  authority  upon  which  a  party 
relies.  Nor  do  they  cover  all  acts  done  by  officers  in  the 
military  service  of  the  United  States  simply  because  they  are 
acting  under  the  general  authority  of  the  President  as  com- 
mander-in-chief of  the  armies  of  the  United  States.  They 
only  cover  acts  done  under  orders  or  proclamations  issued 
by  him  or  under  his  authority ;  and  there  is  no  difficulty 
in  the  defendants  setting  forth  such  orders  or  proclamations, 
whether  general  or  special,  if  any  were  made  which  applied 
to  their  case." 

When,  however,  a  similar  question  arose  in  Mitchell  v. 
Clarke ,2  an  order  from  a  general  in  command  to  pay  the  rent 
due  by  a  tenant  into  the  military  chest  was  treated  as  a  de- 
fence to  an  action  by  the  landlord,  although  there  was  no 
allegation  or  pretence  that  the  President  had  authorized  or 
sanctioned  a  proceeding  which,  as  set  forth  of  record,  was  at 
once  frivolous  and  oppressive.  ' 

The  action  was  brought  for  the  rent  of  two  storehouses 
in  the  city  of  St.  Louis,  and  the  defendant  relied  on  two 
grounds,  —  (1)  that  he  had  paid  the  sum  in  question  on  or 
about  the  24th  of  November,  1862,  into  the  military  chest  of 
General  Schofield,  then  in  command  in  the  State  of  Missouri, 
under  an  order  from  him,  and  could  not,  consistently  with 
the  act  of  March  3,  1863,  above  cited,  be  held  liable  to  the 
landlord ;  and  (2)  that  as  the  cause  of  action  arose  more  than 
two  years  before  the  commencement  of  the  suit,  it  was  barred 
by  the  seventh  section  of  the  same  statute.  The  majority  of 
the  court  held  that  "  possibly  in  a  few  cases  acts  might  have 
been  performed  in  haste  and  in  the  presence  of  an  overpower- 
1  18  WaUace,  510.  «  no  u.  S.  633. 


AN  ORDER   FROM   THE   PRESIDENT.  973 

ing  emergency  for  which  there  was  no  constitutional  power 
anywhere  to  make  good."  There  was,  however,  no  doubt  that 
Congress  might  provide  that  suits  brought  for  any  acts  per- 
formed or  omitted  by  or  under  orders  from  officers  of  the 
government,  even  when  there  was  only  a  color  of  authority, 
should  be  removed  into  the  courts  of  the  United  States  for 
trial.  It  was  not  less  clear  that  where  such  a  removal  could 
take  place,  Congress  could  prescribe  the  period  of  limitation 
for  the  courts  of  the  United  States.  Otherwise  there  would 
be  two  inconsistent  rules  in  different  courts  holding  pleas 
of  the  same  cause.  An  act  done  under  color  of  an  authority 
claimed  to  be  derived  from  the  government  was  a  case  under 
the  Constitution  and  laws  of  the  United  States,  whether  or 
not  such  authority  did  in  fact  or  could  in  law  exist.  Congress 
might,  therefore,  vest  an  exclusive  jurisdiction  in  the  courts 
of  the  United  States,  or  regulate  all  the  incidents  of  suits 
brought  in  the  State  courts.  The  plea  rendered  it  plain  that 
the  purpose  of  General  Schofield's  order  was  to  seize  the  debt 
due  from  the  defendant  and  confiscate  it  for  military  pur- 
poses. The  sum  enforced  from  the  tenant  was  the  precise 
amount  due  to  the  landlord.  It  was  to  answer  the  landlord's 
obligation  or  default  that  the  order  was  made  on  the  tenant, 
and  he  had  no  choice  but  to  obey.  It  might  as  well  be  said 
that  the  garnishee  in  an  attachment  was  not  protected  in 
paying  under  an  order  of  the  court  because  there  was  error 
in  the  proceeding  against  his  creditor.  The  case  of  Harrison 
V.  Myers,^  established  that  the  seizure  of  the  rent  due  under  a 
lease  from  an  absconding  malecontent  was  an  eviction  which 
precluded  the  lessor  from  insisting  on  the  contract.  "  His 
property  was  seized,  and  the  tenant,  was  no  longer  respon- 
sible to  a  landlord  who  could  not  secure  him  possession  ;  and 
as  the  lessee  was  obliged  to  render  obedience  to  a  paramount 
authority,  he  might  well  enter  into  a  new  contract  to  protect 
his  interest." 

Contrasting  this  decision  with  the  language  held  in  Mitchell 
V.  Harmony ,2  we  seem  to  be  in   another  land  and  under  a 
different  system  of  jurisprudence,  and  no  one  who  was  not 
1  92  U.  S,  111.  2  13  Howard,  115;  see  ante,  p.  917. 


97 J:  PAYMENT  UNDER   MILITARY  DURESS 

assured  of  the  fact  would  believe  that  both  judgments  were 
delivered  by  the  same  tribunal.^  The  money  was  not  neces- 
sary for  national  or  local  defence,  both  landlord  and  tenant 
Avere  loyal  citizens,  and  viewing  the  case  as  it  appears  of 
record,  General  Schofield's  order  seems  to  have  been  as 
frivolous  as  it  was  unjust. 

Field,  J.,  dissented  on  the  ground  that  no  law  ever  enacted 
in  the  United  States  would  justify  a  military  officer  in  en- 
forcing the  payment  to  him  of  a  debt  due  from  one  loyal 
citizen  to  another  loyal  citizen,  neither  being  in  the  military 
service  nor  residing  in  a  State  declared  to  be  in  insurrection, 
or  in  which  the  courts  were  not  open  in  the  peaceful  exercise 
of  their  jurisdiction.  The  statute  could  not  give  protection 
to  any  one  in  the  commission  of  unlawful  acts.  General 
Schofield's  order,  and  the  payment  made  under  it,  were  simply 
null,  and  did  not  operate  as  a  defence.  The  provisions  of  the 
seventh  section  of  the  act  of  1863,  and  the  amendatory  act  of 
1866,  applied  only  to  suits  for  acts  or  omissions  on  the  part  of 
persons  acting  under  the  orders  of  the  President  or  the  Secre- 
tary of  War,  or  a  military  commander,  and  did  not  include 
actions  for  breach  of  contract  between  private  parties.  Could 
they  be  construed  to  embrace  cases  like  the  present,  they 
would  clearly  be  unconstitutional.  The  right  of  a  lessor  to 
sue  the  lessee  for  the  rent  was  in  no  way  dependent  upon  an 
act  of  Congress.  Had  the  suit  been  against  General  Schofield 
for  acts  done,  or  money  received  by  him  as  an  officer  of  the 
General  Government,  it  would  have  been  a  case  under  the 
Constitution  and  laws  of  the  United  States,  and  within 
the  limitation  prescribed  by  Congress.  The  true  doctrine 
was,  that  the  limitation  of  actions  in  the  State  courts  for 
the  enforcement  of  rights  which  are  not  dependent  upon  acts 
of  Congress  or  the  Constitution,  is  a  matter  purely  of  State 

1  We  may  infer  that  the  tenant  would  not  have  been  shot  or  imprisoned 
had  he  declined  to  obey  General  Schofield's  order,  and  that  he  would 
simply  have  been  ejected  from  his  shop  or  dwelling  and  compelled  to  look 
for  a  shelter  elsewhere.  If  so,  there  was  hardly  such  duress  as  would 
shake  the  mind  of  a  constant  man  or  justify  a  breach  of  contract.  See 
Gates  V.  Goodloes,  101  U.  S.  612. 


NOT  A  DEFENCE   AGAINST   CREDITOR.  975 

reoralation,  which  the  federal  courts  must  follow  when  such 
actions  are  transferred  to  them. 

There  can  be  little  doubt  that  so  much  of  the  defence  as 
rested  on  the  order  given  by  General  Schofield  was  invalid. 
The  plea  did  not  aver  that  the  landlord  was  disloyal,  or  had 
participated  in  any  way  in  the  rebellion,  or  show  any  ground 
for  the  preposterous  allegation  that  the  seizure  of  the  few 
hundred  dollars  due  by  the  defendant  was  a  necessary  means 
for  carrying  on  the  war,  and  the  defence  and  protection  of 
the  loyal  citizens  of  Missouri ;  and  the  private  property  even 
of  rebels  cannot  be  confiscated  without  military  necessity 
or  due  process  of  law.  That  the  tenant  was  powerless  to  re- 
sist might  be  a  reason  for  indemnifying  him,  but  was  not  a 
reason  for  dismissing  the  suit  brought  by  the  landlord.  The 
analogy  of  a  payment  by  a  garnishee  under  a  foreign  attach- 
ment, as  relied  on  in  the  opinion  of  the  court,  would  seem  to 
afford  an  argument  against  the  conclusion  which  they  drew. 
An  erroneous  judgment  may  be  a  justification  for  such  a 
payment ;  but  decrees  made  and  orders  issued  without 
jurisdiction  are  simply  void,  and  no  judgment  can  be  con- 
clusive on  persons  who  are  not  parties  or  privy  to  the  suit, 
unless  the  proceeding  is  in  rem,  which  cannot  be  said  of  a 
foreign  attachment.^  A  decree  that  the  money  or  effects  in 
the  hands  of  a  garnishee  belong  to  the  defendant  in  the 
attachment,  and  must  be  paid  or  delivered  to  the  attaching 
creditor,  is  not  therefore  a  defence  to  a  suit  by  a  third 
person  who  is  the  legal  owner,  although  the  garnishee  may 
be  as  powerless  as  was  the  tenant  in  the  hands  of  General 
Schofield. 

The  question,  therefore,  seemingl}^  is.  Does  the  inability  of 
a  debtor  to  resist  an  illegal  order  to  pay  the  amount  to  a 
third  person  constitute  a  defence  against  the  creditor?  which 
should  be  answered  negatively  on  principle  and  under  the 

1  Taylor  v.  Carryl,  20  Howai^d,  583, 603 ;  The  Moses  Taylor,  4  Wallace, 
411 ;  The  Hine  v.  Trevor,  Id.  555,  571;  Keiffler  v.  Ehrlher,  18  Pa.  388 
Megee  y.  Beirne,  39  Id.  50;  Flanagan  v.  Mechanics' Bank,  54  Id.  398 
Storm  V.  Elliott,   11  Ohio  St.  252;   Donahue  v.  Prentiss,  22  Wis.  311 
Woodruff  V.  Taylor,  20  Vt.  65;  Putnam  v.  McDougal,  4  Id.  478;  1  Smith's 
Lead.  Cas.  (8  Am.  ed.)  1117,  1126;  2  Id.  966-973. 


976  IS   A  CAUSELESS   MILITARY   ORDER 

authority  of  Williams  v.  Bruffj.^  The  order  there  came 
from  persons  in  arms  against,  and  not  for,  the  United  States  ; 
but  this  does  not  affect  the  legal  aspect  of  a  case  which  de- 
pends on  whether  duress  can  render  the  breach  of  a  contract 
equivalent  to  performance.  There  is  a  manifest  difference 
between  the  payment  of  a  debt  to  a  third  person  under  the 
pressure  of  a  vis  major^  and  the  surrender  of  a  chattel  which 
is  held  in  trust  or  for  safe  keeping.  Both  cases  are  governed 
by  the  maxim  res  perit  domino^  which  throws  the  loss  on  the 
bailor  in  the  latter,  and  on  the  debtor  in  the  former,  because 
the  money  is  his,  although  he  owes  it  to  the  creditor.  It  is 
only  when  the  obligation  is  to  render  the  thing,  and  not 
things  of  a  like  kind,  that  a  vis  major  or  other  inevitable  ac- 
cident can  be  relied  on  as  a  defence  ;  and  an  allegation  that 
the  debtor  was  stopped  by  a  highwayman  while  bringing  the 
money  to  the  creditor  has  never  been  held  a  good  answer  to 
an  action  for  debt.^ 

In  Mitchell  v.  Clarke  the  court  sagaciously  avoided  express- 
ing an  opinion  as  to  the  validity  of  General  Schofield's  order, 
by  saying  that  possibly  "  in  a  few  cases  acts  had  been  per- 

^  96  U.  S.  187.  *'  Parties  residing  in  the  insurrectionary  territory, 
having  property  in  their  possession  as  trustees  or  bailees  of  loyal  citizens, 
may  in  some  instances  have  had  such  property  taken  from  them  by  force; 
and  in  that  event  they  may  perhaps  be  released  from  liability.  Their  re- 
lease will  depend  upon  the  same  principles  which  control  in  ordinary 
cases  of  violence  by  an  unlawful  combination  too  powerful  to  be  success- 
fully resisted.  But,  debts  not  being  tangible  things  subject  to  physical 
seizure  and  removal,  the  debtors  cannot  claim  release  from  liability  to 
their  creditors  by  reason  of  the  coerced  payment  of  equivalent  sums  to  an 
unlawful  combination.  The  debts  can  only  be  satisfied  when  paid  to  the 
creditors  to  whom  they  are  due,  or  to  others  by  direction  of  lawful  au- 
thority. Any  sum  which  the  unlawful  combination  may  have  compelled 
the  debtors  to  pay  to  its  agents  on  account  of  debts  to  loyal  citizens  can- 
not have  any  effect  upon  their  obligations;  they  remain  subsisting  and 
unimpaired." 

2  See  Luter  v.  Hunter,  30  Texas,  688,  711,  where  the  court  relied  on  the 
opinion  of  Chief-Justice  Chase  in  Shortridge  v.  Macon,  Chase's  Opinions, 
136,  142,  that  payment  under  a  compulsory  decree  of  a  de  facto  govern- 
ment does  not  discharge  the  obligation  to  the  creditor,  although  the 
debtor  has  no  choice  but  to  obey. 


A  JUSTIFICATION  FOR  A  TRESPASS?  977 

formed  in  haste  and  in  the  presence  of  an  overpowering  emer- 
gency which  there  was  no  constitutional  power  anywhere  to 
make  good  ;  "  and  resting  their  judgment  on  the  plea  of  the 
Statute  of  Limitations.  There  is  no  such  reticence  in  the 
subjoined  citation  from  the  dissenting  opinion  of  Mr.  Justice 
Field:  — 

"Neither  the  President  nor  Congress  can  confer  immunity  for 
acts  committed  in  violation  of  .the  rights  of  citizens.  An  army  in 
the  enemy's  country  may  do  all  things  allowed  by  the  rules  of 
civilized  warfare,  and  its  officers  and  soldiers  will  be  responsible 
only  to  their  own  government.  But  in  \oy sA  States,  or  in  such 
parts  as  are  not  in  insurrection,  or  declared  to  be  so,  and  in  which 
the  courts  are  open,  the  rights  of  citizens  are  just  as  much  under 
constitutional  security  and  protection  in  time  of  war  as  in  time  of 
peace.  Because  civil  war  was  raging  in  one  part  of  the  country 
the  constitutional  guaranties  of  the  rights  of  person  and  propert}^ 
were  not  suspended  where  no  such  war  existed.  We  sometimes 
hear  the  opposite  doctrine  advanced ;  but  it  has  no  warrant  in  the 
principles  of  the  common  law  or  in  the  language  of  the  Constitu- 
tion. As  I  observed  on  a  former  occasion,  our  system  of  civil 
polity  is  not  such  a  rickety  and  ill-jointed  structure  that  when  one 
part  is  disturbed,  the  whole  is  thrown  into  confusion  and  jostled  to 
its  foundation.  The  existence  of  insurrection  and  war  in  other 
States  than  Missouri,  or  in  parts  of  that  State  distant  from  St.  Louis, 
did  not  suspend  the  Constitution  or  any  of  its  guaranties  in  that 
cit}'.  No  proclamation  of  the  President  had  ever  declared  Mis- 
souri to  be  in  a  state  of  insurrection  ;  and  it  is  a  matter  within  our 
judicial  knowledge  that  St.  Louis,  so  far  from  being  the  theatre  of 
actual  warfare,  was  a  city  where  supplies  were  collected  for  mili- 
tary operations  in  other  quarters,  and  where  the  courts  were  in 
undisturbed  exercise  of  their  jurisdiction."  * 

^  The  act  of  1863  has  been  declared  to  be  unconstitutional  by  the 
State  courts,  —  Griffin  v.  Wilcox,  21  Ind.  370;  Johnson  v.  Jones,  44  111. 
142  ;  Clark  v.  Mitchell,  23  Mo.  564,  —  as  being  in  conflict  with  the 
Fifth  Amendment  ;  and  if  valid  as  to  future  acts,  could  not,  as  it  would 
seem,  operate  as  a  defence  for  wrongs  done  before  its  passage.  Johnson 
V.  Jones,  44  111,  142.  See  Huron  v.  Denman,  2  Ex.  167  ;  Bird  v.  Brown, 
4  la.  785;  Hare  on  Contracts,  278,  290. 

The  irreparable  injury  that  may  be  inflicted  where  power  is  wielded 
arbitrarily  by  persons  who  cannot  be  made  answerable  for  their  conduct, 


978  COURT-MARTIALS  AND 

It  seems  proper  to  inquire  how  far  the  military  authority 
of  the  United  States  extends,  agreeably  to  the  opinion  of  the 
majority  of  the  Supreme  Court  in  Mitchell  v,  Clarke,^  of  the 
minority  in  Ex  parte  Milligan,^  and  under  the  statutes  passed 
during  the  Rebellion  and  subsequent  to  its  termination.  This 
is  the  more  needful  because  no  small  part  of  it  is  a  new 
outgrowth,  unknown  to  American  law  prior  to  the  eventful 
year  1861. 

1.  Congress  may,  on  the  occurrence  of  insurrection  or  in- 
vasion, not  only   suspend   the   habeas  corpus,  but  establish 

although  there  is  no  intention  to  be  unjust,  is  shown  by  the  case  of 
Crosby  v.  Cadwalader,  brought  to  the  October  sessions,  1867,  of  the  Cir- 
cuit Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 
In  December,  1863,  at  the  height  of  the  Rebellion,  a  drunken  woman  told 
a  fellow-passenger  in  a  railway  train  that  a  ship  was  about  to  leave  the 
capes  of  the  Delaware  laden  with  powder,  cannon,  and  other  munitions 
of  war,  and  would  be  seized  while  at  sea  by  rebels  disguised  as  passengers, 
as  had  happened  a  few  days  previously  to  a  vessel  which  sailed  from  New 
York.  The  story  was  related  to  General  Cadwalader,  then  in  command 
at  Philadelphia,  who  thought  it  his  duty  to  report  it  to  the  War  Depart- 
ment, and  received  a.  telegram  in  reply  directing  him  to  seize  the  vessel 
"  if  the  facts  were  true.'**  They  were  entirely  false,  because  the  cannon,  etc., 
were  shipped  by  the  authorities  in  charge  of  the  Philadelphia  Navy  Yard 
for  transfer  to  another  naval  station ;  but  the  ship  was,  notwithstanding, 
seized  by  a  lieutenant  and  a  file  of  soldiers,  all  the  persons  on  board 
were  confined  for  fifteen  days  in  the  casemates  of  Fort  Mifflin,  a  large 
part  of  the  cargo  was  abstracted  by  unknown  persons  and  not  returned, 
and  it  was  not  until  some  months  had  elapsed  that  the  vessel  was  able  to 
resume  her  voyage.  The  owners  at  the  conclusion  of  the  war  applied  to 
the  government  for  compensation,  but  were  told  that  the  seizure  was  il- 
legal,  and  redress  must  be  sought  in  a  proceeding  against  the  general  by 
whom  the  act  was  performed.  The  suit  was  brought ;  but  when  it  came 
to  trial  the  telegram  which  had  been  sent  by  the  Secretary  of  War  was 
produced,  and  the  jury  were  instructed  that  if  General  Cadwalader  was 
authorized  by  the  department  to  arrest  the  plaintiffs  and  seize  their  vessel, 
the  verdict  must  be  for  him.  They  so  found,  and  the  wrong  done  to  the 
plaintiffs  remained  unredressed.  It  was  probably  owing  to  some  such  idle 
tale,  which  would  not  bear  repetition  after  the  heat  of  the  conflict  had 
passed,  that  General  Schofield  made  the  order  which  gave  rise  to  the 
case  of  Clarke  v.  Mitchell.  See  Haldeman,  The  Mysterious  Barque, 
Boston,  1886 ;  Lamb's  Magazine  of  American  History. 

1  110  U.  S.  633.  2  4  Wallace,  2. 


MILITARY  COMMISSIONS.  979 

martial  law  throughout  the  length  and  breadth  of  the  United 
States,  and  render  every  person  in  that  vast  territory  liable 
to  be  sentenced  to  death  by  a  military  commission  consti- 
tuted for  that  end,  as  in  the  case  of  the  Due  d'Enghien,  or 
shaped  adversely  by  the  removal  of  a  scrupulous  member  of 
the  court  and  substituting  some  one  who  can  be  trusted  to 
condemn.^ 

2.  "  Military  commissions  are  simply  instrumentalities  for 
the  more  effectual  execution  of  the  war  powers  vested  in 
Congress,  and  the  power  vested  in  the  President  as  com- 
mander-in-chief in  war."  That  they  are  efficient  instruments 
for  good  or  evil,  no  one  can  doubt,  because  *'  pending  the 
Civil  War,  and  down  to  the  termination  of  the  Reconstruction 
Acts,  they  must  have  tried  and  given  judgment  in  upwards  of 
two  thousand  cases."  ^  As  distinguished  from  courts-martial, 
military  commissions  are  constituted  for  the  trial  and  con- 
viction of  civilians  who  are  not  subject  to  the  military  law 
proper.  Congress  have  not,  except  in  certain  instances,  spe- 
cifically defined  the  extent  and  powers  of  these  tribunals,  and 
have,  on  the  contrary,  "  left  it  to  the  President  and  the 
military  commanders  representing  him  to  employ  the  commis- 

1  "By  Special  Order  No.  211,  dated  May  6,  1865,  the  Military  Commis- 
sion for  the  trial  of  Mrs.  Surratt  and  others  was  constituted  as  follows : 
Major- Generals  David  Hunter,  Lew  Wallace,  A.  V.  Kautz;  Brigadier- 
Generals  A.  P.  Howe,  R.  S.  Foster,  C.  B.  Comstock,  T.  M.  Harris; 
Colonel  Horace  Porter,  and  Lieutenant-Colonel  D.  R.  Clendenin. 

"  On  May  9,  1865,  the  Commission  met,  all  of  the  members  and  the 
accused  being  present.  To  afford  the  latter  an  opportunity  of  securing 
counsel,  an  adjournment  was  had  until  May  10,  1865. 

"By  Special  Order  No.  216,  dated  May  9,  1865,  Brigadier- General 
C.  B.  Comstock  and  Colonel  Horace  Porter  were  relieved  from  duty  as 
members  of  the  Military  Commission,  and  Brigadier- General  James  A. 
Ekin  and  Colonel  C.  H.  Tomkins  detailed  in  their  places." 

The  change  was  made,  without  explanation,  after  the  court  had 
assembled,  although  before  the  members  were  sworn  and  the  prisoners 
arraigned,  and  was  currently  said  at  the  time  to  be  prompted  by  a  doubt 
whether  the  court  as  originally  constituted  would  convict.  This  alle- 
gation was  presumably  unfounded;  but  the  fact  remains  to  show  how 
widely  a  trial  by  court-martial  differs  from  a  trial  at  common  law. 

2  2  Winthrop's  Military  Law,  63. 


980       THE  DICTATORSHIP  ESTABLISHED  BY  THE  ACTS 

sion  as  occasion  may  require  for  the  investigation  and  punish- 
ment of  the  violations  of  the  laws  of  war  and  other  offences 
not  cognizable  by  courts-martial."  ^  As  the  court-martial  is 
an  abnormal  outgrowth  of  the  common  law,  so  the  military 
commission  is  an  excrescence  on  the  court-martial,  and  may 
deal  as  wantonly  with  private  rights  as  did  the  Star  Cham- 
ber or  the  arbitrarily  constituted  commissions  in  use  under 
Elizabeth  and  Charles  I. 

Such  commissions  may  be  assembled  by  '*  commanders  of 
departments,  armies,  divisions,  and  separate  brigades.  .  .  .  The 
provisions  of  the  Articles  of  War,  indicating  by  whom  the 
court  is  to  be  constituted  when  the  commander  who  would 
regularly  order  it  is  in  fact  the  prosecutor  or  accuser  .  .  .  are 
not  required  to  be  observed  in  the  convening  of  these  sum- 
mary tribunals.  .  .  ."  Legally  they  may  be  composed  "as 
the  commander  wills  ...  as,  for  example,  in  part  of  civilians 
or  enlisted  men  ;"  for,  as  Mr.  Disraeli  observed  in  Parliament, 
"  in  the  state  of  martial  law  there  can  be  no  irregularity  in 
the  composition  of  the  court,  as  the  best  court  that  can  be 
got  must  be  assembled."  ^ 

It  is  not,  therefore,  a  vital  objection  to  the  proceedings  of 
these  tribunals,  or  indeed  of  a  court-martial,  that  the  same 
person  is  at  once  prosecutor,  witness,  and  judge,  and  brings 
the  charge,  sustains  it  by  his  testimony,  and  convicts  and 
sentences  the  accused.^  Nor  is  the  jurisdiction  confined  to 
places  which  are  the  scene  of  hostilities,  since  in  November, 
1864,  T.  R.  Hogg  and  six  others  were  arrested  for  taking 
passage  at  Panama  on  an  American  merchant  ship  with  the 
purpose  of  seizing  the  vessel  and  cargo  while  at  sea  on  be- 
half of  the  Southern  Confederacy,  transported  to  San  Fran- 
cisco, and  there  tried  and  sentenced  to  death  by  a  military 
commission.*  In  the  absence  of  any  law  fixing  the  number 
of  the  members  of  a  military  commission,  "  the  same  may  be 

1  2  Winthrop's  Military  Law,  57,  58,  citing  "  XI.  Opinions  of  Attorney- 
General,  305." 

2  2  Winthrop's  Military  Law,  63,  64. 

8  Keys  V.  The  United  States,  109  U.  S.  336. 
*  2  Winthrop's  Military  Law,  67. 


OP  MARCH  3,   1863,  AND  APRIL  20,   1871.  981 

legally  composed  of  any  number,  in  the  discretion  of  the  con- 
vening authority,"  and  a  "  commission  of  a  single  member  " 
is  as  strictly  legal  as  if  there  were  thirteen.^  I  need  hardly 
add  that  the  members  are  not  men  who  have  been  set  apart 
for  the  administration  of  justice,  but  such  persons  as  the 
commanding  officer,  who  may  be  the  accuser,  thinks  fit  to 
select,  and  that  for  "  the  best  court  that  can  be  got,"  unless 
human  nature  changes,  we  may,  as  regards  the  impartial  ad- 
ministration of  justice,  occasionally  read  "worst." 

3.  Should  the  charter  thus  given  not  be  large  enough,  or 
military  commissions  not  prove  sufficiently  summary  or  ex- 
peditious, Congress  may  provide  that  "  any  order  of  the 
President  or  under  his  authority  .  .  .  shall  be  a  defence 
in  all  courts  to  any  action  or  prosecution,  civil  or  criminal " 
for  "  any  search,  seizure,  arrest,  or  imprisonment  made, 
done,  or  committed  by  virtue  of  such  order,  or  under  color 
of  any  law  of  Congress.  Armed  with  this  authority,  every 
commander  of  a  department,  army  division  or  brigade,  has 
absolute  control  over  persons  and  property,  may  arrest, 
imprison,  or  exile  without  explanation  or  cause  shown,  turn 
a  householder  out  of  doors,"  or  cancel  debts  by  directing  a 
payment  of  the  amount  due  into  the  military*  chest,  which 
will,  agreeably  to  the  view  taken  by  the  majority  in 
Mitchell  V,  Clark,^  be  a  defence  to  a  suit  brought  by  the 
creditor.^  The  power  is  not  restricted  to  districts  which 
are  occupied  by  a  hostile  army  or  are  the  theatre  of  war- 
like operations,  and  may  be  exercised  over  persons  who  are 
not  shown  or  alleged  to  have  been  in  arms  against  the  United 
States,  or  to  have  given  aid  and  comfort  to  their  enemies  ; 
and  it  may,  moreover,  be  relied  on  as  a  defence  without  proof 
that  the  act  complained  of  was  necessary  as  a  means  of  up- 
holding the  authority  of  the  government.*  Such,  at  least,  is 
the  tenor  of  the  statute  and  the  construction  put  upon  it  by 
the  defendant  in  Mitchell  v,  Clark,  and  the  Supreme  Court 
carefully  refrained  from  pronouncing  it  unconstitutional. 

1  2  Winthrop's  Military  Law,  65.  2  hq  u.  S.  633.  See  ante,  p.  972. 
8  Harrison  v.  Myers,  92  U.  S.  Ill;  Mitchell  v.  Clark,  110  Id.  633,  645. 
*  See  antey  p.  972;  Mitchell  v.  Clark,  110  U.  S.  633,  635. 


982  GROWTH  OP  MILITARY  JURISDICTION. 

4.  The  above  powers  can  be  exercised  only  during  invasion 
or  insurrection;  but  these  limits  are  elastic,  and  **as  the 
President  before  a  war  is  formally  declared  or  initiated  may 
be  called  upon  to  employ  the  army  in  defensive  operations, "^ 
"  so  military  government  may  legally  be  continued  in  hello 
nondum  cessante  equally  as  flagrante  helUy  ^  Accordingly,  a 
statute  passed  April  20th,  1871,  six  years  after  the  termina- 
tion of  the  civil  war,  provided  that  "  whenever  the  unlaw- 
ful combinations  named  in  the  preceding  sections  of  this  act 
shall  be  organized  and  armed,  and  so  numerous  and  powerful 
as  to  be  able  by  violence  to  either  overthrow  or  set  at  defiance 
the  constituted  authorities  of  such  State  and  of  the  United 
States  within  such  State,  or  where  the  constituted  authorities 
are  in  complicity  with  or  connive  at  the  unlawful  purposes  of 
such  powerful  and  armed  combinations,  and  whenever  by 
reason  of  either  or  of  all  the  causes  aforesaid  the  conviction 
of  said  offenders  and  the  preservation  of  the  public  safety 
shall  become  in  such  districts  impracticable,  in  every  such 
case  such  combination  shall  be  deemed  a  rebellion  against 
the  United  States,  .  .  .  and  it  shall  be  lawful  for  the  President 
of  the  United  States,  when  in  his  judgment  the  public  safety 
shall  require  it,  to  suspend  the  writ  of  habeas  corpus,  to  the 
end  that  such  rebellion  may  be  overthrown."  ^ 

Far-reaching  as  are  these  powers,  more  is  needed  to  ren- 
der them  a  thorough  means  of  despotic  rule.  So  long  as  the 
soldier  can  be  made  accountable  in  court  and  before  a  jury, 
he  may  think  twice  before  executing  an  illegal  command. 
To  render  the  system  complete,  he  must  consequently  be 
emancipated  from  civil  control  and  made  exclusively  answer- 
able to  officers  who  can  inflict  punishment  if  he  hesitates, 
and  reward  him  if  he  obeys.  This  deficiency  may,  if  the 
view  taken  in  Coleman  v.  Tennessee  *  is  correct,  be  supplied 
by  Congress. 

It  may  be  asked.  What  is  the  objection  to  military  com- 

1  As,  for  instance,  by  ordering  it  into  a  disputed  territory  and  render- 
ing war  inevitable.     See  ante,  p.  172. 

2  2  Winthrop's  Military  Law.  «  Ante,  pp.  542,  939. 
*  97  U.  S.  509,  514.     See  ante,  p.  336. 


GEOWTH   OF  MILITARY  JURISDICTION.  983 

missions  and  courts-martial  ?  Why  should  not  justice  be  as 
evenly  administered  by  such  tribunals  as  in  the  course  of  the 
common  law  ?  The  answer  is  that  justice  will  not  be  evenly 
administered  by  any  body  of  men  who  are  dependent  on  the 
power  which  institutes  the  prosecution  and  is  interested  in 
the  result.  So  long  as  the  judges  were  appointed  and  re- 
movable by  the  king,  there  was  no  security  for  life,  liberty, 
or  property  in  England  where  the  Crown  was  concerned. 
Such  protection  as  was  given  came  from  the  jurors  ;  and  yet 
the  judges  had  a  standing  commission,  and  were  not,  like  a 
court-martial,  selected  with  a  view  to  particular  cases.  Sol- 
diers may  not  be  less  just  and  trustworthy  than  civilians  ; 
but  they  are  in  the  hand  of  the  commanding  general  and  the 
Secretary  of  War,  and  have,  moreover,  an  esprit  de  corps  which 
prompts  them  to  sustain  their  comrades  when  charged  with 
having  unduly  exercised  military  power,  and  to  deal  sum- 
marily with  persons  who  are  supposed  to  sympathize  with 
rebellion  or  to  be  adverse  to  the  prosecution  of  the  war. 

To  guard  against  such  evils  and  give  independence  and 
stability  to  the  administration  of  the  law,  the  Constitution 
provides  that  "  the  judges  both  of  the  Supreme  and  inferior 
courts  shall  hold  their  offices  during  good  behavior ;  "  and 
the  military  commissions  which  Mr.  Winthrop  views  with  so 
much  complacency  are  contrary  to  the  letter  and  spirit  of 
this  rule.^  It  was  held  on  like  grounds  in  Antrim's  Case 
that  Congress  cannot  constitutionally  render  the  decision  of 
a  court-martial  or  military  commission  composed  of  persons 
appointed  for  the  occasion  and  removable  at  pleasure,  con- 
clusive of  the  preliminary  question  whether  the  defendant 
has  enlisted  or  is  subject  to  the  draft,  or  preclude  the  civil 
tribunals  from  discharging  him  if  he  is  not  a  soldier  and 
amenable  to  military  law.^  But  for  this  remaining  check 
the  government  of  the  United  States  might,  on  the  occur- 
rence oi*  hostilities,  be  converted  into  a  military  despotism.^ 

1  Antrim's  Case,  5  Phila.  278,  288.  2  j^nte,  p.  927. 

*  The  relation  of  the  military  and  civil  powers,  and  whether  a  soldier 
should  unquestioningly  obey  the  command  of  his  oflBcer,  is  viewed  in 
France  in  a  very  different  light  from  that  of  the  common  law.     The  con- 


984  GROWTH   OF  MILITARY  JURISDICTION. 

trast  is  illustrated  by  an  incident  related  in  the  ''Memoirs  of  the  Due 
de  Broglie."  A  member  of  the  French  Chamber  of  Deputies,  and 
leader  of  the  extreme  Left  or  Radical  party,  was  arbitrarily  expelled  in 
1823,  by  a  legitimist  majority,  without  sufficient  cause.  He  declined  to 
withdraw,  and  a  sergeant  and  file  of  the  National  Guard  were  brought 
into  the  Chamber  and  directed  to  remove  him  by  force.  The  sergeant 
refused  to  give  the  order,  his  men  would  not  receive  it  from  any  one 
else,  and  it  was  not  until  a  squad  of  gendarmes  made  their  appearance 
that  the  majority  obtained  a  victory  which  resembled  a  defeat.  A  ques- 
tion arose  which  seems  to  have  been  new  in  France,  Was  the  sergeant's 
refusal  justifiable?  Can  a  soldier  rightfully  disobey  orders?  De  Broglie 
relates  the  fluctuation  of  his  mind  on  this  point,  but  he  finally  arrived  at 
the  conclusion  that  a  soldier  is  also  a  citizen,  and  should  disregard  any 
command  which  is  contrary  to  law  and  the  duty  which  he  owes  his 
country.  The  duke  ends  with  a  passionate  wish  that  the  battalion  of 
Chasseurs  de  Vincennes  which  arrested  him  and  other  liberal  members  of 
the  Chamber  in  1851,  at  the  command  of  the  president  of  the  French  re- 
public, and  carried  them  like  criminals  through  the  streets  to  the  bar- 
rack, had  contained  men  like  the  sergeant.  Louis  Napoleon's  order  had 
certainly  a  color  of  authority,  for  it  was  stained  with  blood ;  and  had  it 
been  brought  before  the  French  Court  of  Cassation  would  have  been 
handled  as  gingerly  as  was  the  color  of  authority  under  which  General 
Schofield  acted  in  Mitchell  v.  Clarke.  The  duke  also  states  that  he  was 
a  member  of  a  committee  under  the  Martignac  Ministry  in  1830,  for  the 
reform  of  the  military  tribunals,  and  "  proposed  that  their  jurisdiction 
should  for  the  future  be  restricted  to  crimes  and  offences  against  the  rules 
of  the  service,"  and  that  officers  and  soldiers  who  used  weapons  without 
cause  against  their  fellow-citizens  "should  be  handed  over  to  the  ordi- 
nary tribunals  as  accomplices  in  an  ordinary  murder."  The  proposal 
did  not  take  effect,  and  no  such  reform  has,  I  believe,  been  made  in  France 
or  any  State  on  the  continent  of  Europe. 


LECTUKE    XLV. 

The  Jurisdiction  of  the  Federal  Courts  depends  on  the  Nature  of  the 
Cause  or  the  Character  of  the  Parties.  —  The  object  in  the  former  case 
is  to  enforce  the  Constitution,  Laws,  or  Treaties  of  the  United  States ; 
in  the  latter,  to  provide  an  Impartial  Tribunal.  —  A  State  decision 
against  a  Right  or  Privilege  claimed  under  the  Constitution,  or  the 
Laws  or  Treaties  made  in  pursuance  thereof,  may  be  taken  by  an 
Appeal  or  Writ  of  Error  to  the  Supreme  Court  of  the  United  States. 
—  Where  both  Parties  so  claim,  a  decision  in  favor  of  either  is  against 
the  Right  or  Privilege  asserted  by  the  other.  —  The  Circuit  Courts  of 
the  United  States,  if  Congress  so  provide,  may  take  cognizance  of 
cases  potentially  involving  a  Federal  Question,  although  it  is  not 
raised  or  put  at  issue.  —  Suits  by  or  against  Corporations  chartered  by 
the  United  States  are  within  the  Rule,  although  the  validity  of  the 
Charter  is  not  denied.  —  A  baseless  claim  of  a  Right  or  Privilege  under 
the  Constitution  or  Laws  of  the  United  States  will  not  give  the  Fed- 
eral Courts  jurisdiction  originally  or  by  removal. 

Agreeably  to  the  Third  Article  of  the  Constitution,  sect.  2, 
of  the  United  States,  "  the  judicial  power  shall  extend  to  all 
cases  in  law  and  equity  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shall 
be  made,  under  their  authority ;  to  all  cases  affecting  ambas- 
sadors, other  public  ministers,  and  consuls ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction  ;  to  controversies  to  which 
the  United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  States,  between  a  State  and  citizens  of  another 
State,  between  citizens  of  different  States,  between  citizens 
of  the  same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State  or  the  citizens  thereof  and  for- 
eign States,  citizens,  or  subjects."  The  power  conferred  by 
the  above  section  may  be  ranged  under  two  heads,  —  that 
where  jurisdiction  is  conferred  in  view  of  the  character  of  the 
parties,  and  that  where  it  depends  on  the  nature  of  the  de- 
fence or  cause  of  action.  The  power  extends  under  the 
former  head  to  *'  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,"  to  controversies  to  which  the  United 


986  THE  JUDICIAL   POWER. 

States  shall  be  a  party,  to  controversies  between  two  or  more 
States,  between  a  State  and  citizens  of  another  State,  between 
citizens  of  different  States,  and  between  a  State  or  the  citizens 
thereof  and  foreign  States,  citizens,  or  subjects. 

The  second  head  includes  all  cases  in  law  and  equity  aris- 
ing under  the  Constitution,  the  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  authorit}-, 
cases  of  admiralty  and  maritime  jurisdiction,  and  controversies 
between  citizens  of  the  same  State  claiming  under  grants  of 
land  from  different  States.^ 

^  The  following  extract  from  the  judgment  of  Chief-Justice  Jay,  in 
Chisholm  y.  Georgia,  2  Dallas,  419,  gives  a  succinct  and  excellent  sum- 
mary of  the  heads  of  federal  jurisdiction,  and  the  objects  which  they  are 
intended  to  promote  :  "  Let  us  now  turn  to  the  Constitution.  The  people 
therein  declare  that  their  design  in  establishing  it  comprehended  six  ob- 
jects: first,  to  form  a  more  perfect  union;  second,  to  establish  justice; 
third,  to  insure  domestic  tranquillity;  fourth,  to  provide  for  the  common 
defence;  fifth,  to  promote  the  general  welfare;  sixth,  to  secure  the  bless- 
ings of  liberty  to  themselves  and  their  posterity.  It  would  be  pleasing 
and  useful  to  consider  and  trace  the  relations  which  each  of  these  ob- 
jects bears  to  the  others,  and  to  show  that  they  collectively  comprise 
everything  requisite,  with  the  blessing  of  Divine  Providence,  to  render  a 
people  prosperous  and  happy.  On  the  present  occasion  such  disquisitions 
would  be  unseasonable,  because  foreign  to  the  subject  immediately  under 
consideration.  It  may  be  asked.  What  is  the  precise  sense  and  latitude  in 
which  the  words  '  to  establish  justice,'  as  here  used,  are  to  be  understood  ? 
The  answer  to  this  question  will  result  from  the  provisions  made  in  the 
Constitution  on  this  head.  They  are  specified  in  the  second  section  of  the 
Third  Article,  where  it  is  ordained  that  the  judicial  power  of  the  United 
States  shall  extend  to  ten  descriptions  of  cases,  namely:  1st,  to  all  cases 
arising  under  this  Constitution;  because  the  meaning,  construction,  and 
operation  of  a  compact  ought  always  to  be  ascertained  by  all  the  parties, 
or  by  authority  derived  only  from  one  of  them;  2d,  to  all  cases  arising 
under  the  laws  of  the  United  States  ;  because,  as  such  laws  constitutionally 
made  are  obligatory  on  each  State,  the  measure  of  obligation  and  obe- 
dience ought  not  to  be  decided  and  fixed  by  the  party  from  whom  they  are 
due,  but  by  a  tribunal  deriving  authority  from  both  the  parties;  3d,  to 
all  cases  arising  under  treaties  made  by  their  authority;  because,  as 
treaties  are  compacts  made  by,  and  obligatory  on,  the  whole  nation,  their 
operation  ought  not  to  be  affected  or  regulated  by  the  local  laws  or  courts 
of  a  part  of  the  nation ;  4th,  to  all  cases  affecting  ambassadors  or  other 
public  ministers  and  consuls;  because,  as  these  are  officers  of  foreign 


» 


THE  JUDICIAL  POWER.  987 

This  distribution  of  the  subject  was,  like  all  the  provis- 
ions of  the  Constitution,  the  result  of  principles  deliberately 
applied  for  a  definite  and  well-considered  end.^     The  framers 

nations,  whom  this  nation  are  bound  to  protect  and  treat  according  to 
the  laws  of  nations,  cases  affecting  them  ought  only  to  be  cognizable  by 
national  authority;  5th,  to  all  cases  of  admiralty  and  maritime  jurisdic- 
tion; because,  as  the  seas  are  the  joint  proJ)erty  of  nations,  whose  right 
"and  privileges  relative  thereto  are  regulated  by  the  law  of  nations  and 
treaties,  such  cases  necessarily  belong  to  national  jurisdiction;  6th,  to 
controversies  to  which  the  United  States  shall  be  a  party;  because  in 
cases  in  which  the  whole  people  are  interested,  it  would  not  be  equal  or 
wise  to  let  any  one  State  decide  and  measure  out  the  justice  due  to  others: 
7th,  to  controversies  between  two  or  more  States ;  because  domestic  tran- 
quillity requires  that  the  contentions  of  States  should  be  peaceably  termi- 
nated by  a  common  judicatory;  and  because  in  a  free  country  justice 
ought  not  to  depend  on  the  will  of  either  of  the  litigants  ;  8th,  to  contro- 
versies between  a  State  and  citizens  of  another  State;  because,  in  case  a 
State  (that  is,  all  the  citizens  of  it)  has  demands  against  some  citizens  of 
another  State,  it  is  better  that  she  should  prosecute  their  demands  in  a 
national  court  than  in  a  court  of  the  State  to  which  those  citizens  belong,  — 
the  danger  of  irritation  and  criminations  arising  from  apprehensions  and 
suspicions  of  partiality  being  thereby  obviated;  because,  in  cases  where 
some  citizens  of  one  State  have  demands  against  all  the  citizens  of  another 
State,  the  cause  of  liberty  and  the  rights  of  men  forbid  that  the  latter 
should  be  the  sole  judges  of  the  justice  due  to  the  latter;  and  true  Repub- 
lican government  requires  that  free  and  equal  citizens  should  have  free, 
fair,  and  equal  justice;  9th,  to  controversies  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States;  because,  as  the 
rights  of  the  two  States  to  grant  the  land  are  drawn  into  question,  neither 
of  the  two  States  ought  to  decide  the  controversy;  10th,  to  controversies 
between  a  State  or  the  citizens  thereof  and  foreign  States,  citizens,  or 
subjects;  because,  as  every  nation  is  responsible  for  the  conduct  of  its 
citizens  towards  other  nations,  all  questions  touching  the  justice  due  to 
foreign  nations  or  people  ought  to  be  ascertained  by,  and  depend  on, 
national  authority.  Even  this  cursory  view  of  the  judicial  powers  of  the 
United  States  leaves  the  mind  strongly  impressed  with  the  importance  of 
them  to  the  preservation  of  the  tranquillity,  the  equal  sovereignty,  and 
the  equal  right  of  the  people." 

The  Eleventh  Amendment  soon  afterwards  provided  that  the  judicial 
power  of  the  United  States  shall  not  be  construed  to  extend  to  any  suit 
in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  citizens,  or  subjects,  of  any  foreign 
State. 

1  Osborne  v.  The  Bank  of  the  United  States,  9  Wheaton,  738,  819. 
VOL.  II.  —  22 


988  FEDERAL  JURISDICTION. 

of  the  article  had  two  main  objects,  —  one,  that  every  case 
involving  a  federal  question,  should,  if  the  circumstances 
required  it,  be  brought  before  a  federal  court ;  the  other, 
that  in  suits  between  citizens  of  different  States,  or  where 
a  State,  the  United  States,  or  foreign  states,  their  ministers, 
consuls,  subjects,  or  citizens  were  parties,  there  should  be  an 
impartial  tribunal,  on  which  both  sides  could  rely  with  confi- 
dence. But  for  the  latter  rule  there  might  be  an  entire  fail- 
ure of  justice,  through  local  prejudice  or  prepossession  ;  but 
for  the  former,  the  administration  of  the  laws  of  the  Union 
would  depend  on  the  good  faith,  learning,  and  ability  of  the 
judges  appointed  by  the  various  States  ;  and  if  they  were 
disaffected  or  incapable,  there  would  be  no  means  of  redress. 
The  judicial  power  should  obviously  be  co-extensive  with 
the  legislative.  If  it  be  not,  the  government  may  be  obliged 
to  depend  on  courts  deriving  their  authority  from  another 
source,  and  its  laws  may  fail  of  effect,  not  from  any  inherent 
weakness,  but  because  they  are  not  faithfully  applied.-^  As 
well  might  the  execution  of  the  laws  of  the  United  States  be 
left  to  the  governors  of  the  several  States  as  the  final  inter- 
pretation of  those  laws  to  the  State  judiciary.  This  axiom 
was  enunciated  in  the  *' Federalist,"  No.  80,  and  was  relied 
on  in  giving  judgment  in  Cohens  v,  Virginia. 

Legislation  was  nevertheless  requisite  to  carry  these  pro- 
visions into  effect;  and  there  was  consequently  room  for  a 
sound  discretion  in  determining  to  what  extent,  and  by  what 
tribunals,  the  judicial  power  of  the  United  States  should  be 
exercised.  The  outline  was  prescribed  by  the  Constitution ; 
but  except  in  some  principal  features,  such  as  the  existence 
and  jurisdiction  of  the  Supreme  Court,  it  was  for  Congress 
to  fill  it  up.2  As  they  might  create  inferior  courts  if  they 
thought  proper,  so  the  powers  of  these  tribunals  would  de- 
pend on  the  terms  of  the  act.  The  words  "  shall  extend  "  in 
the  Third  Article  are  imperative,  but  have  practically  been 
interpreted  as  equivalent  to  "  may."     A  literal  construction 

1  Cohens  v.  Virginia,  6  Wheaton,  264,  414. 

2  See  Tennessee  v.  Davis,  100  U.  S.  257,  270,  275 ;  Mayor  v.  Cooper, 
6  Wallace,  247. 


JUDICIARY  ACT   OF  1789. 


dBd 


xvould  have  made  it  necessary  to  give  the  courts  of  the 
United  States  appellate,  if  not  original,  jurisdiction  wher- 
ever the  laws  or  the  treaties  of  the  United  States  were  in 
question;  but  it  was  sagaciously  resolved  to  vest  so  much 
only  of  the  powers  conferred  by  the  third  article  as  was 
requisite  to  carry  out  the  main  intent  of  the  Constitution, 
and  leave  the  residue  in  abeyance  until  circumstances  re- 
quired its  exercise. 

If  the  framers  of  th*e  Constitution  were  wise  in  making  the 
jurisdiction  of  the  United  States  co-extensive  with  the  field 
of  legislation,  the  first  Congress  was  not  less  discreet  in  lim- 
iting the  exercise  of  the  power.  Cases  arising  under  the 
Constitution  and  laws  of  the  United  States  might  well  be 
left  in  the  first  instance  to  the  State  tribunals,  so  long  as 
there  was  an  appeal  to  the  national  court  of  the  last  resort 
if  the  decision  was  unfavorable  to  the  right  claimed  under 
the  federal  bond.  There  was  little  danger  that  the  local 
tribunals  would  incline  against  the  government  of  which 
they  were  a  branch,  and  if  they  erred  in  this  regard,  the 
mistake  would  be  rectified  as  the  limits  of  the  national 
authority  came  to  be  accurately  defined.  So  the  right  to 
proceed  in  the  federal  courts,  in  cases  where  jurisdiction  de- 
pended on  the  character  of  the  parties,  was  confined,  unless 
foreign  nations,  their  representatives  or  subjects  were  con- 
cerned, to  suits  brought  by  or  against  a  citizen  of  one  State 
in  the  courts  of  another,  where  he  might  have  reason  to  ap- 
prehend partiality  or  injustice.  The  Supreme  Court  would 
thus  be  left  free  to  perform  its  great  function  as  arbiter  of 
the  Constitution,  without  being  embarrassed  with  questions 
growing  out  of  the  local  laws  of  a  multitude  of  sovereignties, 
which  the  federal  judiciary  could  not  understand  or  apply  as 
accurately  as  judges  who  had  made  them  a  life-long  study. 

The  original  jurisdiction  of  the  circuit  courts  of  the  United 
States  was  confined,  conformably  to  this  view,  by  the  Judi- 
ciary Act  of  1789,  to  cases  where  from  the  character  of  the 
parties,  or  the  relation  which  they  bore  to  each  other  or  the 
States,  there  was  reason  to  apprehend  that  the  scales  would 
not  be  evenly  held  in  the  State  tribunals ;  and  questions  aris- 


990  APPELLATE  JURISDICTION 

ing  under  the  federal  Constitution  and  laws  were  left  to  the 
local  courts,  with  a  right  of  appeal  to  the  Supreme  Court  of 
the  United  States,  if  the  State  court  of  last  resort  inclined 
against  the  right  or  privilege  or  exemption  claimed  under  the 
authority  of  the  Union.  Agreeably  to  the  twenty-fifth  sec- 
tion of  the  Judiciary  Act  of  1789,  the  final  judgment  or  de- 
cree of  the  highest  court  of  law  or  equity  of  a  State  might  be 
reversed  or  affirmed  in  the  Supreme  Court  of  the  United 
States  upon  a  writ  of  error  under  the  following  circumstan- 
ces: First,  where  the  validity  of  a  treaty,  or  statute  of,  or 
authority  exercised  under,  the  United  States  was  "drawn  in 
question,"  and  the  decision  was  "  against  their  validity ;  " 
Second,  where  "  the  validity  of  a  statute  of  or  authority 
exercised  under  a  State  "  was  controverted  as  "  repugnant 
to  the  Constitution,  treaties,  or  laws  of  the  United  States,'' 
and  "  the  decision  was  in  favor  of  their  validity ; "  Third, 
where  the  construction  of  any  clause  of  the  Constitution, 
or  of  any  statute  or  treaty,  or  commission  held  under  the 
United  States  was  drawn  in  question,  and  the  decision  was 
"  against  the  right,  title,  privilege,  or  exemption  specially 
claimed  by  either  party  under  such  clause,  statute,  or  com- 
mission." To  give  jurisdiction  under  this  statute  it  must 
consequently  appear,  not  only  that  some  right,  privilege,  or 
exemption  claimed  under  the  Constitution,  laws,  or  treaties 
of  the  United  States  is  involved,  but  that  the  decision  was 
adverse  to  the  claim.  Hence  a  writ  of  error  will  not  lie 
because  the  court  below  misinterpreted  the  Constitution,  un- 
less it  sanctioned  some  deprivation  which  that  forbids,  or 
withheld  some  right  which  it  confers.  If,  for  instance,  the 
judgment  is  that  a  stay-law  impaired  the  obligation  of  a  con- 
tract contrary  to  the  Constitutional  prohibition,  when  in  fact 
it  was  not  so  impaired,  the  case  is  at  an  end  and  redress  can- 
not be  sought  at  Washington.  The  point  was  so  adjudged  in 
the  Railroad  Co.  v,  Rock,^  and  Rj^an  v.  Thomas,^  in  accordance 
with  the  previous  course  of  decision.^  When  however  both 
parties  '*  claim  a  right,  privilege,  or  immunity  under  the  Con- 

1  4  Wallace,  177.  2  4  Wallace,  603. 

8  Mills  V.  Brown,  16  Peters,  525;  Lawter  v.  Walker,  14  Howard,  149. 


OF  THE  SUPREME  COURT. 


991 


stitution,  or  any  treaty  or  statute  of  or  commission  held,  or 
autbority  exercised,  under  the  United  States,"  a  decision  in 
favor  of  the  title  so  asserted  by  either  is  necessarily  against 
that  relied  on  by  the  other,  and  whichever  way  judgment  is 
given  it  may  be  reversed  by  the  national  court  of  the  last 
resort.  Such  a  question  may  arise  where  the  defendant 
relies  for  his  justification  on  an  authority  from  the  President 
as  commander-in-chief,  and  the  plaintiff  on  a  constitutional 
guaranty  which  the  act  complained  of  violated.  The  same 
remark  applies  when  the  case  depends  on  two  irreconcilable 
statutes,  and  one  of  them  is  alleged  to  be  unconstitutional, 
or  to  have  been  repealed  by  the  other.^ 

In  Trebilcock  v.  Wilson,  a  mortgagor  asked  for  an  order 
compelling  the  mortgagee  to  take  the  United  States  notes 
which  were  made  a  legal  tender  by  the  act  of  Feb.  25,  1862, 
in  payment.  The  mortgage  was  payable  in  specie,  and  the 
mortgagee  contended  that  the  act  was  unconstitutional,  and 
that  he  was  at  all  events  entitled  under  the  case  of  Bronson 
V.  Rhodes  2  to  be  paid  in  the  gold  and  silver  coin  which  were 
the  only  legal  tender  when  the  debt  was  contracted.  The 
State  court  rendered  a  decree  against  him,  and  a  writ  of 
error  was  taken  to  the  Supreme  Court  of  the  United  States, 
which  held,  overruling  Roosveld  v.  Meyer,^  that  the  case  fell 
within  the  appellate  jurisdiction  given  by  the  acts  of  1879 
and  1867.  The  right  of  the  mortgagee  to  be  paid  in  specie 
depended  as  entirely  on  the  Constitution  of  the  United 
States  as  did  the  validity  of  the  statute  under  which  the 
mortgagor  claimed  the  right  to  pay  in  notes.  Aside  from 
this,  the  case  involved  the  construction  of  two  several  acts 
of  Congress,  —  one  creating  a  metallic,  the  other  a  paper,  cur- 
rency. If  the  contract  fell  within  the  former,  the  plaintiff 
in  error  ought  to  have  judgment ;  if  it  was  governed  by  the 
latter,  judgment  should  be  rendered  for  the  defendant.  A 
decision  in  favor  of  either  was  therefore  against  a  "right 
claimed  under  a  statute  of  the  United  States." 

The  original  jurisdiction  of  the  Supreme  Court  is  limited 

1  Trebilcock  v..  Wilson,  12  Wallace,  687. 

2  7  Wallace,  229.  s  i  Wallace,  512. 


992  JURISDICTION  OF  THE 

by  the  wording  of  tbe  grant  to  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in  which  a 
State  shall  be  a  party ;  but  no  such  limitation  is  imposed  on 
the  inferior  courts  which  Congress  are  authorized  to  ordain 
and  establish,  and  they  may  consequently,  if  Congress  so 
provide,  take  cognizance  of  every  case  arising  under  the 
Constitution  and  laws  of  the  United  States  in  the  first  in- 
stance, or  through  a  writ  of  error  or  certiorari  issued  to 
remove  the  cause  from  the  State  tribunals.  Whether  their 
jurisdiction  shall  be  original  or  appellate  depends  on  the  will 
of  the  legislature,  which  may  also  render  the  jurisdiction  of 
the  circuit  courts  exclusive,  or  leave  the  parties  free  to  pro- 
ceed in  the  State  tribunals. 

Although  the  judiciary  act  did  not  authorize  the  inferior 
courts  which  it  created  to  take  cognizance  of  cases  under  the 
Constitution  and  the  laws  of  the  United  States,  and  left 
the  administration  of  the  federal  as  well  as  State  laws  to 
the  local  tribunals,  the  power  none  the  less  remained,  and 
might  be  called  forth  whenever  a  larger  measure  of  author- 
ity was  necessary  to  the  integrity  and  maintenance  of  the 
Union ;  and  instances  might  obviously  occur  when  it  would 
be  essential  for  the  ofi&cers  and  agents  of  the  General  Govern- 
ment to  proceed  directly  in  the  national  tribunals,  with  a 
view  to  the  effectual  performance  of  their  duties.^  Such  an 
occasion  arose  out  of  the  incorporation  of  the  United  States 
Bank,  which  was  viewed  adversely  in  some  of  the  States, 
and  might  be  hindered  in  the  performance  of  its  functions  if 
it  were  obliged  to  pass  through  the  local  tribunals,  and  then 
look  for  redress  to  the  Supreme  Court  of  the  United  States. 
The  bank  was  accordingly  empowered  by  its  charter  "  to  sue 
in  all  State  courts  having  competent  jurisdiction,  and  in  any 
circuit  court  of  the  United  States."  It  brought  an  action, 
against  the  treasurer  of  the  State  of  Ohio  to  recover  money 
which  he  had  taken  from  its  vaults  in  payment  of  a  tax  un- 
constitutionall}'^  imposed  by  the  State,  and  it  was  contended 
for  the  defence  that  broad  as  were  the  terms  by  which  juris- 

1  See  Tennessee  v.  Davis,  100  U.  S.  257,  267 ;  Ex  parte  Yarborough, 
110  Id.  651,  659. 


INFERIOR   COURTS  OF  THE  UNITED  STATES.  993 

diction  was  conferred  in  all  cases  arising  under  the  Consti- 
tution and  laws  of  the  United  States,  the  succeeding  clauses 
indicated  that  the  power  was  to  be  exercised  only  through 
an  appeal  to  the  Supreme  Court,  and  that  the  jurisdiction  of 
the  circuit  courts  was  limited  to  cases  where  the  character 
of  the  parties  gave  jurisdiction,  which  could  not  be  main- 
tained in  the  instance  under  consideration. 

Chief  Justice  Marshall  said,  in  overruling  this  contention, 
that  the  Supreme  Court  had  appellate  to  the  exclusion  of 
original  jurisdiction  in  cases  arising  under  the  Constitution 
and  laws  of  the  United  States  by  the  express  words  of  the 
grant ;  but  this  did  not  preclude  Congress  from  conferring 
original  jurisdiction  on  the  inferior  courts.  Such  an  interpre- 
tation would  restrict  the  grant  of  judicial  power,  which  was 
general,  to  cases  brought  on  appeal  from  the  State  tribunals 
and  prevent  the  United  States  from  establishing  courts  of  the 
first  instance  to  administer  their  laws.  The  intention  of  the 
framers  of  the  Constitution  in  limiting  the  Supreme  Court  to 
an  appellate  jurisdiction  was  to  preserve  the  dignity  of  that 
tribunal,  not  to  impose  a  restraint  on  the  inferior  courts, 
which  might  exercise  either  an  appellate  or  original  jurisdic- 
tion under  the  broad  and  comprehensive  words  by  which 
judicial  power  was  delegated.^ 

While  the  Constitution  was  distinct  in  giving  the  federal 
tribunals  cognizance  of  all  cases  arising  at  law  or  in  equity 
under  its  provisions  or  the  acts  of  Congress,  what  constitutes 
such  a  case  was  not  defined,  and  remained  open  for  consider- 
ation in  the  courts  which  were  to  administer  the  power.  It 
is  now  settled,  on  the  lines  drawn  by  the  great  Chief-Justice 
to  whom  we  owe  the  filling-up  of  the  plan  prepared  by  the 
founders  of  our  government,  that  the  case  need  not  arise 
exclusively  under  the  federal  laws  or  Constitution ;  it  is 
enough  that  they  confer  or  enter  into  any  right  which  is  or 
might  be  controverted  on  either  side.^     As  was  said  in  The 

1  Osborn  v.  The  Bank  of  the  United  States,  9  Wheaton,  738. 

2  The  Mayor  v.  Cooper,  6  Wallace,  247;  Tennessee  v.  Davis,  100  U.  S. 
257,270;  Ames  v.  Kansas,  111  Id.  449;  Starin  v.  New  York,  115  Id. 
248,  257;  Provident  Savings  Life  Ins.  Co.  v.  Ford,  114  Id.  635,  641. 


994  CASES   UNDER  THE  CONSTITUTION 

Mayor  v.  Cooper,  "  It  is  not  an  objection  that  questions  are 
involved  which  are  not  of  a  federal  character.  If  one  of  the 
latter  exist,  if  there  be  a  single  such  ingredient  in  the  mass, 
it  is  sufficient." 

The  leading  case  is  Osborn  v.  The  Bank  of  the  United 
States.  The  bank  sued  in  the  Circuit  Court  of  the  United 
States,  under  an  authority  conferred  by  its  charter,  for  money 
alleged  to  have  been  illegally  taken  from  its  vaults  under 
an  invalid  tax  law  of  Ohio  ;  and  the  question  was,  Could 
Congress  confer  such  a  right  irrespectively  of  the  nature  of 
the  cause  of  action  ;  or,  in  other  words,  could  the  bank  be 
empowered  to  proceed  in  the  federal  courts  although  the  case 
involved  no  federal  element  save  the  bare  fact  that  the  plain- 
tiff was  a  corporation  chartered  by  the  General  Govern- 
ment ?  "  A  decree  was  rendered  against  the  defendants,  who 
appealed  to  the  Supreme  Court  of  the  United  States. 

It  was  contended  on  their  behalf  that  Congress  could  not 
confer  jurisdiction  on  the  courts  of  the  United  States  where 
the  matter  at  issue  arose  under  the  laws  of  a  State.  It  was 
manifest  that  this  could  not  be  done  where  the  plaintiff 
was  an  individual,  and  it  made  no  difference  that  the  suit  was 
brought  by  a  corporation  chartered  under  the  authority  of  Con- 
gress. The  cases  where  the  character  of  the  parties  conferred 
jurisdiction  were  specifically  enumerated  in  the  Constitution, 
and  did  not  include  corporations  deriving  their  existence 
from  the  United  States.  A  controversy  regarding  a  promis- 
sory note  or  a  bill  of  exchange  could  not  be  said  to  arise 
under  the  laws  of  the  United  States,  because  the  payee  or 
holder  was  a  bank  incorporated  by  Congress.  Such  an  insti- 
tution could  not  sue  in  the  federal  courts  for  a  breach  of 
contract  or  a  trespass,  because  neither  the  character  of  the 
party  nor  the  nature  of  the  controversy  was  within  the  ju- 
dicial power  given  by  the  Constitution.  If  the  defendant 
contested  the  validit}'  of  the  charter,  or  called  any  other  law 
of  the  United  States  in  question,  the  case  might  be  said  to  be 
under  the  Constitution  and  laws  of  the  Union.  But  this  was 
not  pretended  in  the  case  under  consideration  ;  and  if  it 
were,  the  jurisdiction  would  under  the  language  of  the  Con- 


AND  LAWS  OF   THE  UNITED   STATES. 


995 


stitution,  as  construed  in  Marbury  v.  Madison,^  not  be  origi- 
nal but  appellate.  On  the  other  hand,  Henry  Clay,  of  counsel 
for  the  bank,  contended  that  every  case  where  the  suit  is 
by  or  against  a  bank  or  other  body  corporate  created  by  Con- 
gress is,  in  the  strictest  sense  of  the  term,  a  case  arising 
nnder  the  laws  of  the  Union.  But  for  the  law  chartering 
the  bank,  the  case  would  never  have  existed.  If  the  law 
were  repealed  the  case  would  be  at  an  end.  Such  a  corpora- 
tion could  not  come  into  court  without  bringing  the  statute 
in  their  hands.  If  it  was  said  that  the  character  of  the  case 
depended  upon  the  questions  actually  controverted,  the  an- 
swer was  that  no  such  restriction  was  imposed  by  the  Con- 
stitution ;  and  when  such  a  controversy  was  brought  into 
court  no  one  could  foretell  what  course  it  would  take  while 
there.  The  right  of  the  plaintiff  to  sue  and  the  jurisdiction 
of  the  court  did  not  depend  on  the  line  of  defence  chosen  by 
the  party  against  whom  the  suit  was  brought. 

This  view  was  adopted  by  Chief-Justice  Marshall.  The 
appellants,  he  observed,  contended  that  the  case  was  not 
within  the  jurisdiction  of  the  court,  because  it  involved  ques- 
tions depending  on  the  general  principles  of  jurisprudence, 
and  did  not  necessarily  turn  on  the  validity  of  the  act  char- 
tering the  Bank  of  the  United  States.  If  such  was  the  rule, 
the  jurisdiction  of  the  federal  courts  would  be  singularly 
restiicted.  It  seldom  happened  that  every  part  of  any  case 
depended  on  the  Constitution,  the  laws,  or  the  treaties  of  the 
Union.  In  almost  every  instance  there  were  questions  over 
which,  if  they  stood  alone,  the  courts  of  the  United  States 
would  not  have  jurisdiction.  Could  it  be  said  that  a  demand 
based  upon  an  act  of  Congress  did  not  fall  within  the  terms 
of  the  Constitution  because  the  defence  consisted  in  an  alle- 
gation that  the  demand  had  been  released  or  satisfied  ?  If 
so,  the  right  to  hear  and  determine  the  cause  depended  on 
the  course  taken  by  the  defendant,  and  he  might  oust  the 
jurisdiction  of  the  court  by  pleading  in  confession  and  avoid- 
ance.    In  the  case  under  consideration  the  right  of  the  plain- 


1  7  Cranch. 


996  CASES  UNDER  THE   CONSTITUTION 

tiffs  to  sue  grew  out  of  the  statute  which  made  them  a  body 
politic  and  corporate.  If  that  was  invalid  they  had  no  exist- 
ence as  a  legal  entity  capable  of  maintaining  an  action.  Had 
the  suit  been  brought  when  the  bank  was  first  incorporated, 
it  would  clearly  have  fallen  within  the  grant  of  judicial 
power  to  the  United  States.  The  validity  of  the  charter 
was  then  denied,  and  might  be  considered  doubtful.  It 
had  since  been  established  by  the  decisions  of  the  Supreme 
Court,  but  this  did  not  vary  the  case  or  defeat  the  jurisdic- 
tion. The  defendant  might  still  conceivably  deny  the  au- 
thority of  Congress,  and  if  he  did  so  the  controversy  would 
confessedly  arise  under  the  Constitution.  What  course  he 
would  adopt  could  not  be  known  until  the  cause  was  heard. 
To  ascertain  what  is  embraced  in  a  cause,  it  is  necessary  to 
consider  what  will  be  concluded  by  the  judgment;  and  a 
judgment  is  confessedly  conclusive  of  every  point  which 
might  have  been  raised  in  pleading,  whether  it  is  or  is  not 
actually  put  at  issue  and  determined.  The  right  of  the  bank 
to  sue  in  the  federal  courts  stood  on  the  same  footing  as  tliat 
of  the  ofiicers  of  the  government.  The  Postmaster-General, 
for  example,  could  not  maintain  such  a  suit  by  virtue  of  the 
clauses  of  the  Constitution  which  gave  jurisdiction  in  view 
of  the  character  of  the  party.  The  jurisdiction  of  the  court 
arose  in  such  cases  from  the  circumstance  that  the  authority 
of  the  Postmaster-General  to  contract  on  behalf  of  the  United 
States  was  derived  from  a  law  of  Congress.  The  defendant 
might  concede  the  validity  of  the  law,  and  rest  the  defence  on 
payment,  and  yet  no  one  contended  that  the  adoption  of  such 
a  course  on  his  part  would  preclude  the  court  from  giving 
judgment  of  jurisdiction.  The  right  to  sue  in  the  Circuit 
Court  for  the  infringement  of  a  patent  rested  on  the  same 
principle.  Such  a  case  depended  on  the  Constitutional  pro- 
visions securing  an  exclusive  right  to  inventors  and  the  stat- 
utes passed  to  carry  them  into  effect.  Yet  the  defendant 
might  not  question  the  validity  of  the  patent,  or  make  any 
point  involving  the  construction  of  the  patent  laws,  and 
might  confine  himself  to  an  allegation  that  he  had  not  used 
the  plaintiff's  invention.     This  plea  would  then  be  the  sole 


AND  LAWS  OF  THE  UNITED  STATES. 


00T 


matter  in  controversy;  but  the  cause  would  not  on  that 
account  cease  to  be  under  the  Constitution  and  laws  of  the 
United  States. 

This  decision  establishes,  first,  that  if  any  part  of  a  case 
arises  under  the  Constitution  or  laws  of  the  United  States,  the 
whole  will  be  within  the  judicial  power  conferred  by  the  Con- 
stitution ;  and  next,  that  this  power  may,  if  Congress  think 
fit,  be  vested  exclusively  in  the  national  tribunals.  In  every 
instance,  therefore,  where  the  demand  is  based  upon  a  law  or 
grant  of  the  United  States,  or  where  the  defendant  does  or 
may  rely  upon  such  a  law  or  grant  as  a  justification,  juris- 
diction may  be  conferred  on  the  federal  courts  to  the  exclu- 
sion of  the  State  tribunals.^  When,  for  example,  the  plaintiff 
brings  trespass  for  an  injury  to  land  or  chattels,  or  for  the 
breach  of  an  agreement  to  construct  a  house  or  carriage,  the 
case  is  'prima  facie  within  the  jurisdiction  of  the  State  courts, 
and  beyond  the  judicial  power  conferred  by  the  Constitution. 
If,  however,  a  certificate  of  bankruptcy  is  pleaded  in  bar 
of  the  right  to  damages,  or  an  authority  or  title  derived  from 
the  United  States  relied  on  as  a  justification  for  the  trespass, 
the  case  will  cease  to  be  exclusively  under  the  law  of  the 
State,  and  depend  on  the  construction  of  the  Constitution 
and  laws  of  the  Union.^  It  may,  therefore,  if  Congress  so. 
provide,  be  removed  by  a  certiorari^  or  other  writ  of  a  like 
kind,  from  the  tribunal  where  it  was  originally  instituted, 
and  submitted  to  a  circuit  or  other  subordinate  court  of  the 
United  States.  And  as  the  due  administration  of  justice; 
requires  that  a  case  shall  not  be  examined  by  parcels,  or  one 
part  considered  to  the  exclusion  of  the  rest,  the  authority  of 
the  State  court  will  thereupon  cease,  and  jurisdiction  vest 
absolutely  in  the  national  tribunal.^  A  suit  on  the  official 
bond  given  by  a  United  States  marshal  under  an  act  of  Con- 


1  Pacific  Railroad  Removal  Causes,  115  U.  S.  2,  15. 

=*  Givin  V.  Brendlove,  2  Howard,  29;  6  Id.  7;  Feibelman  v.  Packard, 
109  U.  S.  421. 

*  See  The  Mayor  v.  Cooper,  6  Wallace,  270;  Tennessee  v.  Davis,  100 
U.  S.  257,  268;  Strander  v.  West  Virginia,  Id.  303;  Virginia  v.  Rives, 
Id.  313. 


998  CASES   UNDER   THE   CONSTITUTION 

gress  is  within  this  principle,  although  the  breach  set  forth 
in  the  declaration  is  taking  goods  out  of  the  plaintiff's  pos- 
session under  a  proceeding  in  bankruptcy  against  a  third 
person,  contrary  to  the  laws  of  the  State  where  the  act  was 
done.^ 

In  the  Pacific  R.  R.  Removal  Cases,^  the  exhaustive  argu- 
ment of  Chief-Justice  Marshall,  in  Osborn  v.  The  Bank  of 
the  United  States,  —  "  delivered  more  than  sixty  years  ago, 
and  always  acquiesced  in,"  —  was  said  to  show  conclusively 
"  that  a  suit  by  or  against  a  corporation  chartered  by  Con- 
gress is  a  suit  under  the  laws  of  the  United  States."  It 
followed  that  railway  companies  deriving  their  corporate  ex- 
istence from  that  source  may,  if  Congress  so  provide,  proceed 
in  the  federal  courts,  or  remove  the  suits  brought  against 
them  to  such  courts  from  the  State  tribunals,  although  the 
cause  of  action  is  a  book  debt  or  other  pecuniary  demand, 
and  the  only  issue  payment;  or  though  the  controvers}^  grows 
out  of  a  proceeding  instituted  in  the  State  tribunals  under 
the  local  laws  for  the  widening  of  a  street.  The  existing 
national  banks  are  potentially  in  the  same  category,  although 
the  right  of  removal  is  limited  by  the  Act  of  July  12,  1882, 
to  cases  where  a  similar  suit  by  or  against  a  State  bank  can 
be  so  removed.^ 

Agreeably  to  these  decisions,  the  judicial  power  of  the 
United  States  extends  beyond  the  other  departments  of  the 
Government,  and  may  be  exercised  over  matters  in  which 
they  have  no  direct  concern,  although  the  effect  is  to  abridge 
the  jurisdiction  of  the  States  in  a  corresponding  ratio.  An 
act  of  Congress  which  assumes  to  regulate  commerce  gen- 
erally, without  excepting  the  purely  internal  commerce  of 
the  States,  is  simply  void.*  But  if  any  part  of  a  case  re- 
lates to  commerce  among  the  States  or  with  foreign  nations, 
it  is  immaterial   that   the  residue  grows  out  of  a  contract 

1  Feibelman  v.  Packard,  109  U.  S.  421.  See  Sharp  v.  Doyle,  102  Id. 
686. 

2  115  U.  S.  1,  11.     See  Searl  v.  School  District,  124  Id.  197. 
8  The  Leather  Man.  Bank  r.  Cooper,  120  U.  S.  778,  781. 

*  See  ante,  p.  439. 


AND  LAWS   OF  THE  UNITED   STATES. 


999 


made  and  to  be  performed  within  a  State,  and  the  entire 
cause  may  be  withdrawn  from  a  State  court  and  brought 
before  a  federal  tribunal  which  will  not  be  governed  by 
the  decisions  of  the  State  courts  in  determining  whether  the 
contract  has  been  broken,  or  the  validity  of  the  right  claimed 
under  it.^ 

The  decisions,  at  the  same  time,  are  that,  to  bring  a  case 
within  the  principle,  some  right,  title,  privilege,  or  immunity 
conferred  or  arising  under  the  Constitution  or  an  act  of  Con- 
gress, must  be  actually  involved,  and  that  a  baseless  plea  or 
allegation  to  that  effect  will  not  suffice.^  In  Starin  v.  New 
York,3  a  suit  in  equity  was  instituted  against  the  Independ- 
ent Steamboat  Company,  and  certain  other  companies  and  per- 
sons, who  were  joined  as  defendants,  to  prevent  them  from 
infringing  an  exclusive  right  of  ferriage  claimed  by  the  city 
of  New  York  between  Manhattan  Island  and  the  north  shore 
of  Staten  Island,  across  the  strait  known  as  Kill  Van  Kuhl. 
The  answer  averred,  as  a  matter  of  special  defence  under 
the  laws  of  the  United  States,  that  the  Independent  Steam- 
boat Company  was  chartered  under  the  laws  of  New  Jersey 
for  the  purpose  of  transporting  persons  and  property,  as  com- 
mon carriers  for  hire,  in  and  over  the  waters  of  the  Bay  of 
New  York  and  the  adjacent  straits,  which  were  waters  of  the 
United  States  ;  that  the  boats  of  the  company  were  enrolled 
and  licensed  under  the  laws  of  the  United  States  for  carrying 
on  the  coasting-trade  on  such  waters  ;  and  that  the  decree 
asked  for  would  be  a  restraint  on  navigation  and  an  obstruc- 
tion to  the  interstate  commerce,  which  was  exclusively  under 
the  control  of  Congress.  The  record  was  removed  on  these 
grounds  to  the  Circuit  Court  of  the  United  States,  but  re- 
manded to  the  State  court,  and  the  Supreme  Court  of  the 
United  States  sustained  the  decision.  The  United  States 
had  not  in  any  manner  attempted  to  interfere  with  the  power 
of  a  State  to  grant  exclusive  ferry  privileges  across  public 

1  See  ante,  442;  Homer  v.  Brown,  16  Howard,  354;  Miller  v.  Brown, 
13  Id.  218;  Dred  Scott  Case,  19  Id.  393,  603. 

2  Provident  Savings  Life  Ins.  Co.  v.  Ford,  114  U.  S.  635,  638,  641; 
Germania  Ins.  Co.  v.  Wisconsin,  119  U.  S.  473,  476. 

8  115  U.  S.  248,  257. 


1000  CASES   UNDER   THE  CONSTITUTION 

waters  between  places  within  its  own  jurisdiction.  On  the 
other  hand,  no  attempt  was  made  by  the  complainants  to 
control  the  use  of  the  licensed  and  enrolled  vessels  of  the  de- 
fendants in  any  other  way  than  by  preventing  them  from 
running  as  a  ferry  in  violation  of  the  exclusive  right  asserted 
by  the  city.  There  was  consequently  no  conflict  between 
the  franchise  claimed  on  one  side  and  the  right  accorded  on 
the  other  by  the  Constitution  and  laws  of  the  United  States ; 
and  the  question  whether  the  franchise  existed  presented  no 
point  that  could  give  the  federal  courts  jurisdiction  or  justify 
the  removal  of  the  cause.  The  case  of  Hartell  v.  Tilghman,^ 
goes  still  further  in  the  same  direction,  and  to  an  extent 
which,  as  the  minority  of  the  court  held,  clashes  with  Osborn 
V.  The  Bank. 

So  in  The  Germania  Ins.  Co.  v.  Wisconsin,^  a  summons 
issued  in  a  proceeding  by  the  State  of  Wisconsin  in  one  of 
its  own  courts  against  an  insurance  company  chartered  by 
another  State  to  recover  certain  statutory  penalties,  was 
returned  by  the  sheriff  as  "  served  on  L.  D.  Harmon,  being 
then  and  there  an  agent  of  the  defendants."  A  petition 
to  set  aside  the  service  on  the  ground  that  Harmon  was 
not  the  defendant's  agent  was  followed  by  another  for  the 
removal  of  the  cause  to  the  Circuit  Court  of  the  United 
States  on  the  ground  that  it  was  an  attempt  to  exercise 
jurisdiction  over  a  company  which  was  not  subject  to  the  au- 
thority of  the  court,  without  the  due  process  of  law  required 
by  the  Fourteenth  Amendment.  The  Supreme  Court  of  the 
United  States  held  that  there  was  no  right  to  the  removal. 
As  the  record  stood,  the  right  of  recovery  depended  alone  on 
whether  the  summons  had  been  served  on  a  person  who  was  at 
the  time  an  agent  of  the  company  within  the  State,  on  whom 
process  might  legally  be  served  so  as  to  bind  the  company 
and  bring  them  within  the  jurisdiction  of  the  court.  This 
was  a  mixed  question  of  law  and  fact,  in  no  way  dependent 
on  the  construction  of  the  Constitution  or  any  law  of  the 
United  States.  There  was  nothing  in  the  complaint  which 
disclosed  any  such  case,  and  until  the  company  submitted 

»  99  U.  S.  457.  2  119  u.  S.  473. 


AND  LAWS  OF  THE  UNITED  STATES.  1001 

themselves  to  the  jurisdiction  of  the  court  they  could  not  be 
permitted  to  allege  any  new  matter.  The  suit  therefore  did 
not  as  yet  really  and  substantially  involve  a  dispute  or  con- 
troversy within  the  jurisdiction  of  the  Circuit  Court,  and  it 
was  properly  remanded. 

It  results  from  this  decision  that  a  citizen  of  one  State 
may  be  compelled  to  choose  between  appearing  in  the  courts 
of  another  by  a  summons  served  on  an  entire  stranger,  and 
suffering  a  judgment  "to  be  rendered  by  default  which  may 
be  enforced  against  any  property  that  he  may  have  within 
the  State,  and  be  made  the  ground  of  a  recovery  in  the  place 
where  he  resides  or  is  domiciled  unless  he  can  prove  that 
the  person  on  whom  the  writ  was  served  was  not  his  agent ; 
and  cannot  raise  the  question  whether  the  means  taken  for 
the  end  are  due  process  of  law  in  the  sense  of  the  Four- 
teenth Amendment,  by  removing  the  cause  to  a  federal  court, 
or  except  by  a  writ  of  error  to  the  Supreme  Court  of  the 
United  States. 

In  the  Provident  Savings  Life  Insurance  Society  v.  Ford,^ 
the  court  held,  following  the  same  line  of  thought,  that  a  suit 
brought  on  a  judgment  recovered  in  a  federal  court  is  not  a 
case  under  the  Constitution  and  laws  of  the  United  States, 
or  susceptible  of  removal  from  a  State  to  a  national  tribu- 
nal. A  judgment  was  said  to  be  a  mere  security,  like  a  treas- 
ury note  or  bond.  It  could  not  be  contended  that  an  action 
of  trover  for  withholding  such  securities  was  a  case  arising 
under  the  laws  of  the  United  States.  So  a  suit  for  waste  or 
a  trespass  on  land  is  not  such  a  case,  although  the  plaintiff 
holds  under  a  federal  grant  or  patent.  Such  a  suit  is  wholly 
unlike  "a  suit  by  or  against  a  company  chartered  by  the 
United  States,"  which,  according  to  the  masterly  analysis  of 
Chief-Justice  Marshall  in  Osborn  v.  The  Bank  of  the  United 
States,  is  pervaded  from  its  origin  to  its  close  by  United  States 
law  and  United  States  authority. 

This  decision  was  no  doubt  sound  relatively  to  the  matters 
in  hand.  No  argument  is  requisite  to  prove  that  cases  should 
not  be  removed  from  the  State  courts  hypothetically,  nor 

1  114  U.  S.  635,  642. 


1002  CASES   UNDER  THE  CONSTITUTION,  ETC. 

unless  they  actually  present  a-  question  under  the  Constitu- 
tion or  an  act  of  Congress ;  but  it  does  not  follow  that  cases 
potentially  involving  such  questions  may  not,  if  Congress  so 
provide,  be  brought  in  a  circuit  court,  nor  that  the  Provident 
Savings  Life  Insurance  Society  v.  Ford  was  not  such  a  case. 
The  right  of  recovery  on  the  judgment  of  a  federal  tribunal 
depends  on  whether  the  court  had  jurisdiction  of  the  cause 
and  the  parties  under  the  Constitution  in  view  of  the  Judi- 
ciary Act,  —  things  which  may  be  denied  with  as  much  or  as 
little  reason  as  could  the  constitutionality  of  the  act  in  Osborn 
V.  The  Bank  of  the  United  States,  and  therefore  bring  the 
case  within  the  rule  there  laid  down,  whether  they  are  or  are 
not  actually  put  at  issue.  The  decisions  may  seemingly  be 
reconciled  on  tlie  ground  that  while  Congress  can  give  the 
federal  courts  jurisdiction  when  the  Constitution,  laws,  or 
treaties  of  the  United  States  are  potentially  without  being 
actually  involved,  the  act  will  not  be  so  construed  in  the 
absence  of  an  explicit  declaration. 


LECTUKE    XLVI. 


Growth  of  Admiralty  Jurisdiction  in  the  United  States.  —  Extends  above 
the  Ebb  and  Flow  of  the  Tide,  and  may  be  exercised  over  all 
Navigable  Waters  affording  a  means  of  interstate  or  foreign  Com- 
merce. —  Includes  Marine  Policies,  Charter-parties,  and  other  Con- 
tracts ancillary  to  Navigation.  —  How  related  to  the  Power  over 
Commerce.  —  May  attach  to  Vessels  trading  between  Ports  of  the 
same  State.  — Covers  Injuries  done  to  and  on  board  of  Vessels,  though 
resulting  from  the  Obstruction  of  the  Channel.  —  But  not  Injuries 
done  by  Vessels  to  Bridges  or  other  fixed  Structures.  —  May  be  exer- 
cised as  to  Controversies  among  Foreigners.  —  Admiralty  Jurisdiction 
in  rem  exclusive  of,  that  in  personam  concurrent  with  the  State  tri- 
bunals. —  Jurisdiction  under  the  Act  limiting  the  Liability  of  Owners 
to  the  amount  of  their  interest  in  the  Vessel.  —  Seizure  by  Marshal  of 
a  Vessel  levied  on  by  Sheriff  invalid.  —  Contracts  for  the  Construction 
of  a  Vessel  do  not  fall  within  the  Jurisdiction  of  the  Admiralty,  and 
may  be  Prosecuted  in  rem  in  the  State  courts. 

The  grant  of  judicial  power  also  includes  "  all  cases  of  ad- 
miralty and  maritime  jurisdiction,"  —  another  application  of 
the  principle  that  the  judicial  power  of  a  government  should  be 
co-extensive  with  the  legislative.  Congress,  as  we  have  seen, 
are  authorized  to  regulate  commerce,  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas,  and  offences 
against  the  law  of  nations,  to  grant  letters  of  marque  and 
reprisal,  and  make  rules  concerning  captures  by  land  and 
water,  —  powers  which  might  fail  of  effect  if  the  federal 
courts  could  not  take  cognizance  of  the  questions  that  grow 
out  of  their  exercise.  Such  a  jurisdiction  is  the  more  requi- 
site, because  it  covers  a  multitude  of  cases,  and  among  them 
collisions  at  sea,  contracts  of  bottomry  and  respondentia,  and 
supplies  furnished  on  the  credit  of  the  vessel,  which  the 
common  law  does  not  reach,  or  to  which  it  is  inadequate. 

The  admiralty  jurisdiction  of  the  United  States  has  been 
carried  by  the  force  of  circumstances  beyond  the  bounds  to 
which  it  was  jealously  confined  in  the  parent  country  by  the 
VOL.  n.  — 23 


1004  ADMIRALTY  JURISDICTION   ABOVE 

paramount  authority  of  the  courts  of  common  law,  and  now 
includes  ancillary  contracts  relating  to  navigation,  as  well  as 
those  which  directly  concern  the  vessel  and  are  to  be  carried 
into  effect  on  the  high  seas.  The  law  was  so  held  as  to 
maritime  insurance  by  Story,  J.,  in  De  Lovio  v.  Boit,^  and 
adopted  by  the  Supreme  Court  in  The  Insurance  Co.  v.  Dun- 
ham,2  notwithstanding  the  objection  that  the  effect  was  to 
impair  the  right  to  a  jury  trial  as  guaranteed  in  the  amend- 
ments, by  leaving  both  the  law  and  the  facts  to  the  judges.^ 
Such  is  the  rule  where  any  part  of  the  transit,  under  an  en- 
tire contract,  is  on  the  ocean,  its  bays  or  sounds,  though  the 
rest  of  the  journey  is  by  land,*  and  it  is  now  applied  to  vessels 
traversing  the  lakes  and  rivers  which  afford  a  means  of  inter- 
course with  other  States  and  foreign  countries.^ 

1  2  Gallison,  398.  2  n  Wallace,  1,  sect.  28. 

8  Sheppard  v.  Steele,  43  N.  Y.  52,  61;  Edwards  v.  Elliott,  36  N.  J. 
Law,  449,  458. 

*  See  Lord  v.  The  Steamship  Company,  102  U.  S.  541,  ante;  The  Lex- 
ington, 6  Howard,  344;  The  Moses  Taylor,  4  Wallace,  411;  The  Insur- 
ance Co.  V.  Dunham,  11  Id.  28. 

6  See  The  Jefferson,  10  Wheaton,  428;  The  Lottawanna,  21  Wallace, 
558,  609;  The  Magnolia,  20  Howard,  296;  The  Belfast,  7  Wallace,  624. 

"In  the  case  of  The  Moses  Taylor,  it  was  decided  that  a  contract  to 
carry  passengers  by  sea,  as  well  as  a  contract  to  carry  goods,  was  a  mari- 
time contract,  and  cognizable  in  admiralty,  although  a  small  part  of  the 
transportation  was  by  land,  the  principal  portion  being  by  water.  In  a 
late  case  of  affreightment,  that  of  The  Belfast,  it  was  contended  that  ad- 
miralty jurisdiction  did  not  attach,  because  the  goods  were  to  be  trans- 
ported only  from  one  port  to  another  in  the  same  State,  and  were  not  the 
subject  of  interstate  commerce.  But,  as  the  transportation  was  on  a 
navigable  river,  the  court  decided  in  favor  of  the  jurisdiction,  because  it 
was  a  maritime  transaction.  Justice  Clifford,  delivering  the  opinion  of 
the  court,  says :  '  Contracts,  claims,  or  service,  purely  maritime,  and 
touching  rights  and  duties  appertaining  to  commerce  and  navigation,  are 
cognizable  in  the  admiralty  courts.  Torts,  or  injuries  committed  on  navi- 
gable waters,  of  a  civil  nature,  are  also  cognizable  in  the  admiralty  courts. 
Jurisdiction  in  the  former  case  depends  upon  the  nature  of  the  contract, 
but  in  the  latter  it  depends  entirely  upon  the  locality.'  It  thus  appears 
that  in  each  case  the  decision  of  the  court,  and  the  reasoning  on  which  it 
was  founded,  have  been  based  upon  the  fundamental  inquiry,  whether 
the  contract  was  or  was  not  a  maritime  contract.  If  it  was,  the  juris- 
diction was  asserted;  if  it  was  not,  the  jurisdiction  was  denied.  And 
whether  maritime  or  not  maritime  depended,  not  on  the  place  where  the 


THE  EBB   AND  FLOW  OF  THE  TIDE.  1005 

It  is  established  under  these  decisions  that  not  only  salvage, 
wharfage,  work  done  and  supplies  furnished  to  the  vessel  at 
the  home  port  or  during  the  prosecution  of  the  voyage,  but 
policies  of  insurance  and  contracts  for  the  transportation 
of  goods  and  passengers,^  and  all  contracts,  claims,  or  ser- 
vices purely  maritime  and  touching  rights  and  duties  apper- 
taining to  commerce  or  navigation,  are  cognizable  in  the 
admiralty  courts,^  which  also  take  cognizance  of  torts  or 
injuries  of  a  civil  nature  committed  on  navigable  waters. 
"  Jurisdiction  in  the  former  case  depends  upon  the  nature  of 
the  contract,  but  in  the  latter  entirely  on  the  locality."  ^ 
Suits  by  ship-carpenters  and  material-men  for  repairs,  materi- 
als, and  supplies,  and  by  pilots  for  pilotage,  are  consequently 
within  the  jurisdiction.^  Such  also  is  now  the  rule  in  England 
by  act  of  Parliament.^ 

Claims  for  supplies  furnished  and  work  done  to  a  vessel  at 
her  home  port  may  be  prosecuted  in  personam  in  the  admi- 
ralty, but  do  not,  agreeably  to  the  practice  in  England  and 
the  United  States,  give  rise  to  a  maritime  lien.^  When,  how- 
ever, such  a  lien  is  created  by  a  State  legislation  it  will  fall 
within  the  exclusive  jurisdiction  of  the  Admiralty,  and  may 
be  enforced  by  a  proceeding  in  rem.'^  No  such  proceeding 
can,  however,  be  maintained  in  the  State  tribunals,  even  when 
it  is  specifically  authorized  by  the  act  which  gave  the  lien  ; 

contract  was  made,  but  on  the  subject-matter  of  the  contract.  If  that 
was  maritime,  the  contract  was  maritime.  This  may  be  regarded  as  the 
established  doctrine  of  the  court."     Ins.  Co.  v.  Dunham,  11  Wallace,  28. 

1  Ex  parte  Easton,  95  U.  S.  68;  The  Josephine,  39  N.  Y.  19;  Brook- 
man  V.  Hamill,  43  Id.  554;  Morewood  v.  Enequist,  23  Howard,  491;  The 
Eddy,  5  Wallace,  481. 

2  The  Lexington,  6  How.  344;  Ins.  Co.  v.  Dunham,  11  Wallace,  1,  36. 
8  The  Belfast,  7  Wallace,  624,  646. 

*  The  New  Jersey  Steam  Navigation  Co.  v.  The  Merchants'  Bank,  6 
Howard,  344;  The  Insurance  Co.  v.  Dunham,  11  Wallace,  1;  Ex  parte 
Hagar,  104  U.  S.  r)20;  Ex  parte  Pennsylvania,  109  Id.  174. 

^  See  Northcote  v.  The  Owners  of  The  Henrich  Bjorn,  L.  R.,  11  App. 
Cas.  270. 

«  The  General  Smith,  4  Wheaton,  438;  The  Lottawanna,  21  Wallace, 
658,  609;  The  Josephine,  39  N.  Y.  19. 

'  The  Lottawanna,  21  Wallace,  558. 


1006  ADMIRALTY  JURISDICTION   AS  RELATED   TO 

and  the  object  was  to  enable  them,  and  not  to  enlarge  the 
admiralty  jurisdiction  of  the  United  States.^  Such  a  result 
would  seem  to  be  at  variance  with  the  rule  that  a  statute 
which  is  unconstitutional  in  any  material  particular  is  entirely 
void  unless  the  valid  part  is  separable,  and  it  can  justly  be 
inferred  that  the  legislature  would  have  adopted  it  had  they 
known  that  the  rest  would  fail.^ 

The  extension  of  the  powers  of  the  admiralty  beyond  the 
ebb  and  flow  of  the  tide  is  simply  an  application  of  the  maxim, 
Oessante  ratione  cessat  ipsa  lex;  because  the  English  rule  de- 
pended on  the  fact  that  navigation  is  there  seldom  if  ever 
practicable  above  tide-water,  while  not  a  few  of  our  rivers 
are  navigated  to  ports  many  hundreds  of  miles  from  the  sea, 
and  the  great  lakes  afford  a  still  wider  scope.^  There  is  the 
more  reason  for  such  a  conclusion  since  interstate  as  well  as 
foreign  commerce  is  placed  by  the  Constitution  under  the 
guardianship  of  Congress.  If  the  trust  were  not  administered 
as  regards  navigation  through  the  admiralty  courts  of  the 
United  States  it  would  devolve  on  the  State  courts,  and  a 

1  The  Josephine,  39  N.  Y.  19;  Sheppard  v.  Steele,  43  Id.  52,  61;  The 
Lottawanna,  21  Id.  558;  The  Moses  Taylor,  4  Wallace,  411. 

2  See  ante,  p.  412;  The  Josephine,  39  X.  Y.  19;  Sheppard  v.  Steele,  43 
Id.  52,  61 ;  Baldwin  v.  Franks,  120  U.  S.  678,  707. 

The  judgment  in  De  Lovio  v.  Boit  ran  counter  to  the  previous  course 
of  decision,  and  was  generally  regarded  as  an  innovation.  See  L'Arina 
V.  Manwaring,  Bee,  199;  Talbot  r.  The  Commanders,  1  Dallas,  103;  Jack- 
son p.  Steamboat  Magnolia,  20  Howard,  296;  Taylor  v.  Carryl,  Id.  583; 
Cutler  V.  Rae,  7  Howard,  729.  In  The  Magnolia,  20  Howard,  296,  the 
ground  taken  in  De  Lovio  v.  Boit  was  described  as  ''  tj;ie  broad  pretension 
set  up  by  Mr.  J.  Story  under  which  the  legal  profession  and  this  court 
staggered  for  thirty  years  without  being  able  to  maintain  it."  But 
there  has  been  no  such  criticism  of  the  cases  which  carry  the  admiralty 
jurisdiction  of  the  United  States  beyond  the  ebb  and  flow  of  the  tide, 
which  was  the  limit  set  in  England,  and  make  it  coextensive  with  the 
water-ways  which  afford  the  means  of  communication  among  the  States 
and  with  foreign  countries.  The  Genesee  Chief,  12  Howard,  443;  The 
Magnolia,  20  Id.  296;  The  Insurance  Co.  v.  Dunham,  11  Wallace,  1,  36; 
The  Lottawanna,  21  Id.  5.58,  609. 

8  The  Genesee  Chief,  12  Howard,  443;  The  Hine  v.  Trevor.  4  Wallace, 
555,  564;  The  Magnolia,  20  Howard,  296,  343. 


THE   POWER   OVER   COMMERCE.  1007 

voyage  beginuing  on  the  great  lakes  or  Mississippi  and  end- 
ing a  thousand  miles  from  its  commencement  might  be  sub- 
jected to  conflicting  liens  administered  by  tribunals  having 
no  common  head  and  proceeding  under  different  laws.^  The 
need  of  uniformity  in  the  commercial  transactions  of  an  ex- 
tensive and  populous  country  was  the  chief  argument  for 
placing  contracts  of  insurance  under  the  control  of  the  ad- 
miralty, and  it  applies  with  greater  force  to  all  that  concerns 
navigation. 

The  power  of  the  United  States  over  navigation  springs 
from  the  commercial  power,  which  is  limited  to  commerce 
among  the  States  and  with  foreign  nations  ;  and  it  was 
contended  that  as  the  stream  cannot  rise  higher  than  its 
source,  contracts  for  the  transportation  of  goods  or  passengers 
by  river  from  one  port  in  a  State  to  another  were  no  more 
subject  to  the  admiralty  jurisdiction  of  the  federal  courts  than 
if  the  carriage  took  place  by  land.^  Reasoning  from  these 
premises,  it  followed  that  vessels  trading  between  ports  of 
the  same  State  on  a  river  exclusively  within  her  boundaries 
could  not  be  regulated  by  Congress,  or  libelled  in  the  ad- 
miralty for  the  breach  of  a  contract  of  assignment  or  the 
damages  occasioned  by  a  collision. 

Agreeably  to  the  view  taken  in  Allen  v,  Newberry,^  con- 
tracts for  the  transportation  of  goods  from  one  port  in  a  State 
to  another  on  waters  above  the  ebb  and  flow  of  the  tide  are 
not  maritime  or  within  the  jurisdiction  of  the  admiralty ;  and 
such  also  was  held  to  be  the  rule  with  regard  to  supplies  fur- 
nished for  such  a  voyage.* 

1  See  The  St.  Lawrence,  1  Black,  522;  The  Lottawanna,  21  Wallace, 
558,  609;  The  Hine  v.  Trevor,  4  Id.  555,  572. 

2  See  Waring  v.  Clark,  5  Howard,  441,  504 ;  The  Magnolia,  20  Id.  296, 
343,  315;  Allen  v.  Newberry,  21  Id.  245;  Maguire  v.  Card,  21  Id.  248; 
The  Lottawanna,  21  Wallace,  558,  609  ;  Lord  r.  The  Steamship  Co., 
102  U.  S.  541. 

8  21  Howard,  244. 

*  Maguire  v.  Card,  21  Howard,  248. 

"The  exclusive  jurisdiction  of  the  court  in  admiralty  cases  was  con- 
ferred on  the  National  Government,  as  closely  connected  with  the  grant 
of  the  commercial  power.     It  is  a  maritime  court,  instituted  for  the  pur- 


1008  NAVIGATION  BETWEEN   PORTS 

In  Maguire  v.  Card,^  the  supplies  which  gave  rise  to  the 
controversy  were  furnished  to  a  steamer  trading  between 
ports  and  places  on  the  Sacramento  River,  which  has  its 
entire  course  in  California.  The  court  held  that  the  con- 
tract, like  that  in  Allen  v.  Newberry,  concerned  the  internal 
trade  of  the  State,  and  must  be  governed  by  the  same  prin- 
ciples. There  was  no  good  reason  for  extending  the  juris- 
diction of  the  admiralty  over  such  contracts.  From  the  case 
of  Gibbons  v.  Ogden^  down,  it  had  been  conceded  that,  ac- 
cording to  the  true  interpretation  of  the  commercial  power, 
it  does  not  extend  to  the  purely  internal  traffic  of  a  State, 
which  is  necessarily  left  to  the  local  legislature.  To  subject 
it  therefore  to  the  jurisdiction  of  the  admiralty  would  extend 
the  judicial  power  of  the  United  States  beyond  the  legisla- 
tive, and  require  the  federal  courts  to  enforce  the  municipal 
laws,  or  laws  of  the  States,  as  to  matters  which  concern  them 
and  are  beyond  the  scope  of  the  General  Government.^ 

The  decisions  now  incline  to  a  broader  rule,  more  in  har- 
mony with  the  objects  which  the  government  of  the  United 
States  was  intended  to  promote.*  The  grant  of  judicial 
power  includes  "  all  cases  of  admiralty  and  maritime  juris- 
diction ; "  and  since  vessels  were  equally  subject  to  the  au- 
thority of  the  admiralty  as  it  was  administered  in  England 
and  on  this  side  of  the  Atlantic,  whether  the  voyage  was 

pose  of  administering  the  law  of  the  seas.  There  seems  to  be  ground, 
therefore,  for  restraining  its  jurisdiction,  in  some  measure,  within  the 
limit  of  the  grant  of  the  commercial  power,  which  would  confine  it,  in 
cases  of  contract,  to  those  concerning  the  navigation  and  trade  of  the 
country  upon  the  high  seas,  etc.,  with  foreign  countries,  and  among  the 
several  States.  Contracts  growing  out  of  the  purely  internal  commerce 
of  the  State,  etc.,  are  generally  domestic  in  their  origin  and  operation, 
and  could  scarcely  have  been  intended  to  be  drawn  within  the  cognizance 
of  the  federal  courts."  The  New  Jersey  Navigation  Co.  v.  Merchants' 
Bank,  6  Howard,  344;  Allen  v.  Newberry,  21  Id.  244,  251. 

1  21  Howard,  248. 

2  9  Wheaton,  194. 

8  See  ante,  pp.  430,  489,  442;  The  Trade-Mark  Cases,  100  U.  S.  82; 
Steamship  Co.  v.  Lord,  102  Td.  541. 

*  The  Lottawanna,  21  Wallace,  558;  The  Commerce,  1  Black,  574; 
The  Belfast,  7  Wallace,  624,  646. 


OF   THE   SAME   STATE.  1009 

between  ports  of  the  same  or  to  a  foreign  countr}^  the  rule 
should  —  now  that  navigability  is  made  the  test,  instead  of 
the  ebb  and  flow  of  the  tide  —  be  extended  to  navigable 
lakes  and  rivers.^  It  is  the  character  of  the  traffic  as  inter- 
nal, interstate,  or  foreign,  and  not  whether  it  takes  place 
over  a  road  or  river,  by  boat  or  railwaj^,  which  must  be  con- 
sidered in  applying  the  commercial  power;  but  admiralty 
jurisdiction  has  a  wider  scope,  and  may  be  exercised  over 
all  boats  using  the  navigable  waters  of  the  United  States.^ 
Vessels  use  the  same  waters  whether  they  are  engaged  in 
foreign  or  domestic  trade  ;  and  as  disorder  and  litigation 
would  result  if  they  were  governed  by  different  rules,  Con- 
gress may  make,  and  the  admiralty  enforce,  such  regulations 
as  are  requisite  to  give  certainty  to  title,  maintain  order,  and 
prevent  the  collisions  which  may  be  as  disastrous  on  a  river 
as  at  sea.  The  craft  which  is  plying  to-day  between  places 
in  the  same  State  may  to-morrow  extend  her  voyage  to  an- 
other, or  proceed  to  sea ;  and  it  is  therefore  essential  that 
she,  in  common  with  all  others  which  are  or  may  be  engaged 
in  coasting  or  foreign  trade,  shall  be  governed  by  the  same 
rules.^ 

It  is  on  such  grounds  that  Congress  may  enact  that  sales 
and  mortgages  of  vessels  shall  be  invalid  as  against  bona  fide 
purchasers,  unless  they  are  duly  registered  at  the  custom 
house ;  prescribe  the  number  and  character  of  the  boats 
which  each  must  carry,  and  the  lights  which  they  must 
show  ;  and  require  the  machinery  and  boilers  of  steamers 
to  be  inspected  by  an  officer  of  the  government  and  certified 
by  him.  And  the  statute  may  be  enforced  in  the  admiralty 
whether  the  voyage  is  between  ports  of  the  same  or  of  a  dif- 
ferent State.* 

1  The  Belfast,  7  Wallace,  624. 

2  The  Belfast,  7  Wallace,  624;  The  Magnolia,  20  Howard,  296. 
8  See  The  Lottawanna,  21  Wallace,  558,  609. 

^  See  Shaw  v.  McCandless,  36  Miss.  296 ;  Richardson  v.  Montgomery, 
49  Pa.  203;  The  Providence  &  N.  Y.  Steamship  Co.  v.  Hill  Manufactur- 
ing Co.,  109  U.  S.  578,  607;  White's  Bank  v.  Smith,  7  W^allace,  646. 
See  ante,  p.  109. 


1010  NAVIGABLE  WATERS   OF  THE 

The  case  may  seemingly  be  summed  up  as  follows  :  A  ship 
is  potentially  an  instrument  of  interstate  and  foreign  com- 
merce, whether  she  is  or  is  not  actually  so  employed,  and  as 
such  subject  to  the  jurisdiction  of  the  General  Government. 
Highways  are  under  the  control  of  the  States  when  on  land, 
but  they  may  be  regulated  by  Congress,  or  through  the  admi- 
ralty, when  they  consist  of  the  navigable  waters  of  the  United 
States.  Regard  must  be  had,  in  determining  whether  a  suit 
can  or  cannot  be  maintained  in  the  admiralty,  to  the  locality 
where,  and  the  nature  of  the  tort  or  contract  out  of  which, 
the  controversy  arose ;  and  if  these  give  jurisdiction,  it  is 
immaterial  that  the  voyage  lay  between  ports  in  the  same 
State.^  In  the  case  of  The  Commerce'^  it  was  contended  that 
the  proceeding  must  fail,  because  the  collision  occurred  on 
the  Hudson  River  within  the  body  of  the  countj^,  and  it  did 
not  appear  that  either  of  the  vessels  was  engaged  in  foreign 
commerce,  or  commerce  among  the  several  States ;  but  the 
court  held  that  the  judicial  power  conferred  by  the  Constitu- 
tion in  all  cases  of  admiralty  and  maritime  jurisdiction  might 
be  exercised  over  every  vessel  trading  on  the  navigable  waters 
of  the  United  States.  The  test  "  is  locality  where  the  cause 
of  action  arises  ex  delicto ;  and  if  it  appears  in  cases  of  col- 
lision, depredations  upon  property,  illegal  dispossession  of 
ship,  or  seizures  for  violation  of  the  revenue  laws,  that  the 
wrongful  act  was  committed  on  navigable  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States, 
the  case  is  properly  cognizable  in  the  admiralt3^"  ^ 

So  far  the  conclusion  is  essential  to  the  best  interests  of 
all  concerned,  which  would  be  imperilled  if  vessels  navigat- 
ing the  same  waters  were  not  governed  by  a  common  rule ; 
but  it  has  been  decided  on  less  convincing  grounds  that  if 
the  contract  relates  to  navigation,  —  as  being  of  affreight- 

1  See  The  Commerce,  1  Black,  574:  The  Belfast,  7  Wallace,  624,  637; 
The  Lottawanna,  21  Id.  558,  587;  The  Insurance  Co.  v.  Dunham,  11  Id. 
1,  23,  29;  Ex  parte  Boyer,  109  U.  S.  629;'  Henry's  Admiralty  Jurisdic- 
tion and  Procedure,  sections  11,  12,  13. 

!^1  Black,  574. 

8  The  Belfast,  7  Wallace,  624,  640. 


UNITED  STATES   NATIONAL  HIGHWAYS.  1011 

ment  or  for  supplies, —  the  admiralty  jurisdiction  may  attach 
whether  the  termini  of  the  voyage  are  in  the  same  or  different 
States.^  In  the  case  of  The  Belfast  a  libel  was  filed  in  the 
City  Court  of  Mobile  against  a  steamboat  for  the  loss  of 
bales  of  cotton  which  had  been  shipped  by  river  from  Vienna 
in  the  State  of  Alabama  to  Mobile  in  the  same  State,  and  a 
decree  rendered  for  the  plaintiff;  but  the  proceeding  was  set 
aside  by  the  Supreme  Court  of  the  United  States  on  the 
ground  that  a  contract  for  the  transportation  of  goods  by 
water  from  one  place  to  another  may  be  enforced  by  a  suit 
in  rem  against  the  vessel  in  the  federal  courts,  though  both 
ports  are  in  the  same  State,  and  no  part  of  the  voyage  is 
in  any  other  State  or  foreign  country ;  and  as  their  juris- 
diction is  exclusive  whenever  it  is  sought  to  charge  the 
vessel,  no  such  proceeding  can  be  instituted  in  a  State  tri- 
bunal. The  contract  viewed  as  such  was  internal,  and  not 
subject  to  the  commercial  power  of  the  General  Govern- 
ment; but  inasmuch  as  it  was  to  be  carried  into  effect  by 
navigation  on  the  waters  of  the  United  States,  -it  came  within 
the  grant  of  admiralty  and  marine  jurisdiction.  Whatever 
the  rule  may  be,  when  the  contract  is  for  the  transportation 
of  goods  from  one  point  in  a  State  to  another,  above  the 
ebb  and  flow  of  the  tide,  there  can  be  no  doubt  that  when 
the  way,  or  any  considerable  part  of  it,  is  on  the  ocean,  it 
and  the  vessel  are  under  the  jurisdiction  of  the  admiralty, 
and  may  be  regulated  by  Congress  whether  the  termini  are 
in  the  same  or  in  different  States.^ 

In  Lord  v.  Steamship  Co.  an  act  limiting  the  liability  of 
owners  of  vessels  not  used  in  river  or  inland  navigation  for 
maritime  torts  to  the  amount  of  the  value  of  their  interest 
in  the  vessel  and  her  freight,  was  sustained  on  the  ground 
that  it  only  related  to  navigation  on  the  ocean,  which  is  be- 
yond the  control  of  the  States,  and  must  be  regulated  by 
Congress.  The  case  of  Carr  v.  McGuire  was  cited  as  author- 
itative ;  and  the  language  of  the  Chief-Justice  might  seem 

1  The  Belfast,  7  Wallace,  624,  642. 

2  See  Lord  v.  Steamship  Co.,  102  U.  S.  541. 


1012  WHAT   CONSTITUTES   A   NAVIGABLE 

to  impl}-  that  vessels  trading  above  the  ebb  and  flow  of  the 
tide  cannot  constitutionally  be  brought  within  the  jurisdic- 
tion of  the  admiralty  unless  they  are  engaged  in  interstate  or 
foreign  commerce.  But  the  decision  turned  on  the  validity 
of  the  act  under  the  commercial  power,  and  does  not  show 
that  the  police  power  —  which,  though  generally  reserved  to 
the  States,  is,  from  the  necessity  of  the  case,  lodged  in  Con- 
gress, as  regards  navigation  —  may  not  be  exercised  through 
the  admiralty  on  all  vessels  using  the  navigable  waters  of  the 
United  States.^ 

In  considering  the  decisions  on  this  point  it   should  be 

1  The  principle  is  clearly  stated  in  the  following  extract  from  Henry's 
Admiralty  Jurisdiction  and  Procedure,  section  12:  •'  Neither  the  lakes 
nor  the  public  rivers  of  the  United  States  are  in  the  federal  sense  high- 
ways of  the  State.  A  vessel  after  leaving  a  port  of  a  State  on  a  public 
river  is  on  a  national  highway,  subject  to  State  jurisdiction  for  some  lim- 
ited police  purposes,  which  are  subordinate  to  the  paramount  right  of 
navigation ;  and  the  navigable  rivers  are  as  much  national  highways  as 
the  high  seas  are  international.  The  littoral  jurisdiction  of  a  State,  al- 
though extending  for  some  purposes  bej^ond  low-water  mark,  is  subject 
to  the  paramount  right  of  navigation  as  a  highway  of  the  nation,  in  the 
same  manner  as  the  sea  within  the  three  mile  zone  from  the  shore  is  sub- 
ject to  the  I'ight  of  navigation  by  foreigners  without  becoming  subject  to 
the  local  law.  Such  waters  are  considered  as  the  common  highway  of 
nations,  and  the  jurisdiction  of  the  local  authorities  exists  only  for  the 
protection  of  the  coast  and  its  inhabitants,  —  not  to  subject  passing  ves- 
sels to  the  local  law  of  the  government  of  the  shore.  The  Queen  v.  Keyn, 
L.  R.  2  Exch.  Div.  63,  opinion  by  Cockburn,  Ch.-J. ;  The  General  Iron 
Screw  Collier  Co.  v.  Schurmanns,  1  John  &  H.  180;  The  Twee  Gebroe- 
ders,  3  C.  Rob.  336.  In  The  Saxonia,  Lush.  410,  a  collision  between  a 
foreign  and  an  English  vessel  in  the  waters  of  Solent  was  treated  as  if 
it  had  occurred  on  the  high  seas,  and  was  governed  by  the  general  mari- 
time law,  and  not  by  the  English  statute  in  force  in  that  place,  which  was 
held  only  applicable  to  British  vessels.  Such  rivers  within  the  bounda- 
ries of  a  State  are  navigable  waters  of  the  United  States,  and  are  national 
and  not  State  highways ;  and  the  control  of  the  General  Government  ex- 
tends over  all  vessels  engaged  in  their  navigation  where  such  rivers  may 
be  made  the  means  of  interstate  commerce ;  and  even  canals  are  now  con- 
sidered public  waters  over  which  the  admiralty  jurisdiction  extends." 
The  Daniel  Ball,  10  Wallace,  557;  Veazie  v.  Moor,  14  How.  568;  The 
Belfast,  7  Wallace,  624;  In  re  Long  Island  Trans.  Co.,  5  Fed.  Rep.  699; 
Ex  parte  Boyer,  109  U.  S.  629. 


WATER   OF  THE  UNITED   STATES. 


1013 


remembered  that  although  a  grant  of  judicial  power  cannot 
be  enlarged  by  legislation,  Congress  may  prescribe  how  much 
of  it  shall  be  exercised  at  a  given  period,  and  by  what  means. 
As  was  said  in  the  case  of  The  Magnolia,^  "  The  Consti- 
tution, in  defining  the  powers  of  the  courts  of  the  United 
States,  extends  them  to  "  all  cases  of  admiralty  and  maritime 
jurisdiction."  It  defines  how  much  of  the  judicial  power 
shall  be  exercised  by  the  Supreme  Court  only ;  and  it  was 
left  to  Congress  to  ordain  and  establish  other  courts,  and  to 
fix  the  boundary  and  extent  of  their  respective  jurisdictions. 
Congress  might  give  any  of  these  courts  the  whole  or  so  much 
of  the  admiralty  jurisdiction  as  it  saw  fit.  It  might  extend 
their  jurisdiction  over  all  navigable  waters,  and  all  ships  and 
vessels  thereon,  or  over  some  navigable  waters,  and  vessels 
of  a  certain  description  only.  Consequently,  as  Congress  had 
never  before  1845  conferred  admiralty  jurisdiction  over  the 
northern  fresh-water  lakes  not  "navigable  from  the  sea,"  the 
district  courts  could  not  assume  it  by  virtue  of  this  clause  in 
the  Constitution.  An  act  of  Congress  was  therefore  neces- 
sary to  confer  this  jurisdiction  on  those  waters,  and  was  com- 
pletely within  the  constitutional  powers  of  Congress,  — unless 
by  some  unbending  law  of  nature,  fresh- water  lakes  and 
rivers  are  necessarily  within  the  category  of  those  that  are 
not  "  navigable,"  and  which,  consequently,  cannot  be  sub- 
jected to  adnuralty  jurisdiction  any  more  than  canals  or  rail- 
roads. 

To  constitute  a  navigable  water  of  the  United  States,  it 
must,  of  itself  or  by  its  connection  with  other  waters,  form 
a  continuous  highway  over  which  commerce  is  or  may  be 
carried  on  with  other  States  or  foreign  countries  through  the 
customary  means  of  navigation.  If  it  does  afford  such  a  com- 
munication, it  and  vessels  traversing  on  it  are  subject  to  the 
jurisdiction  of  the  admiralty.  If  it  does  not,  and  is  only 
navigable  between  different  places  within  the  same  State,  it 
is  not  a  navigable  water  of  the  United  States.  Hence  boats 
"borne  on  such  a  stream,  or  on  a  lake  in  the  interior  of  a 
State  with  no  navigable  outlet,  are  not  included  in  the  grant 
1  20  Howard,  296,  300. 


1014  THINGS  FIXED   TO  THE  SOIL. 

of  maritime  and  admiralty  jurisdiction,  and  can  be  regulated 
by  Congress  only  when  forming  links  in  interstate  or  foreign 
commerce.^ 

The  question  has  been  variously  considered,  and  it  seems 
to  have  been  thought  at  one  period  that  a  stream  could  not 
be  treated  as  a  navigable  water  of  the  United  States  unless 
it  afforded  an  uninterrupted  means  of  communication  with 
other  States  and  foreign  countries  before  its  channel  was 
artificially  deepened  or  improved ;  but  it  is  now  settled  that 
a  vessel  is  not  less  an  instrument  of  commerce  within  the 
jurisdiction  of  the  United  States,  because  the  river  on  which 
it  floats  has  been  rendered  navigable  by  locks  and  dams ;  ^ 
and  from  this  there  is  but  a  single  step  to  holding  that  the 
rule  includes  canals  when  forming  a  connecting-link  between 
navigable  waters  of  the  United  States.^  The  canal,  at  all 
events,  when  chartered  or  constructed  by  the  State,  is  under 
her  control,  but  the  boats  which  pass  through  it  may  be  reg- 
ulated by  Congress,  and  are  subject  to  admiralty  jurisdiction.'* 

In  Ex  parte  Boyer  ^  the  District  Court  of  the  United  States, 
sitting  in  admiralty,  was  held  to  have  jurisdiction  of  a  suit  in 
rem  against  a  steam  canal-boat,  to  recover  damages  caused  by 
a  collision  between  her  and  another  canal-boat  while  both 
were  navigating  a  canal  which  had  been  constructed  to  unite 
the  waters  of  Lake  Michigan  with  the  Mississippi,  —  although 
the  libellant's  boat  was  bound  to  a  poit  in  Illinois  from 
another  port  in  the  same  State.     Blatchford,  J.,  said  :  — 

''  Navigable  water,  situated  as  this  canal  is,  used  for  the  pur- 
poses for  which  it  is  used,  —  a  highway  for  commerce  between 
ports  and  places  in  different  States,  carried  on  by  vessels  such  as 
those  in  question  here,  —  is  public  water  of  the  United  States,  and 
within  the  legitimate  scope  of  the  admiralty  jurisdiction  conferred 

1  The  Montello,  11  Wallace,  411,  415. 

2  The  Montello,  11  Wallace,  411;  20  Id.  140. 
8  Ex  parte  Boyer,  109  U.  S.  629. 

*  See  The  Daniel  Ball,  10  Wallace,  557;  Railroad  Co.  v.  Maryland,  21 
Id.  456,  471 ;  Sands  v.  Manistee  River  Improvement  Co.  123  U.  S.  288. 
6  109  U.  S.  629. 


THINGS   FIXED   TO   THE  SOIL. 


1015 


by  the  Constitution  and  statutes  of  the  United  States,  even  though 
the  canal  is  wholly  artificial,  and  is  wholly  within  the  body  of  a 
State,  and  subject  to  its  ownership  and  control ;  and  it  makes  no 
difference  as  to  the  jurisdiction  of  the  district  court  that  one  or  the 
other  of  the  vessels  was  at  the  time  of  the  collision  on  a  voyage 
from  one  place  in  the  State  of  Illinois  to  another  place  in  that 
State." 

Although  Congress  may  regulate  the  navigable  waters  of 
the  United  States  as  the  means  of  commercial  intercourse 
and  ways  for  the  passage  of  vessels,  the  ownership  of  the 
water,  of  the  fish  which  it  contains,  and  of  the  soil  beneath, 
remains  in  the  States  ^  A  State  law,  therefore,  regulating 
the  public  right  to  catch  fish  over  the  soil  of  the  State  below 
low-water  mark,  or  prohibiting  the  inhabitants  of  other  States 
from  gathering  oysters  in  any  of  its  bays,  rivers,  or  waters, 
is  not  repugnant  to  the  grant  of  admiralty  and  maritime 
jurisdiction,  or  to  any  other  clause  or  article  of  the  Con- 
stitution.2 

For  analogous  reasons  the  admiralty  cannot  take  cogni- 
zance of  cases  where  the  damage  is  wholly  on  land,  or  to  a 
structure  affixed  to  the  soil,  and  forming  part  of  that  mass  of 
property  which  is  subject  to  the  police  and  judicial  power  of 
the  States ;  as,  for  instance,  where  a  bridge  or  wharf  is  in- 
jured by  a  passing  vessel,^  or  where  a  fire  originating  on 
board  of  a  ship  is  communicated  to  the  buildings  near  which 
she  is  moored.*  But  redress  may  be  had  in  the  admiralty  for 
an  injury  to  a  vessel  from  a  bridge,  wharf,  or  other  structure, 
which  injuriously  obstructs  the  channel,  or  from  a  defect  in 
the  dock  wherein  she  lies,  or  from  piles  left  negligently  in 
the  bed  of  the  stream.^ 

1  See  ante,  p.  514;  McCready  v.  Virginia,  94  U.  S.  391;  United  States 
V.  Bevans,  3  Wheaton,  336. 

2  Smith  V.  Maryland,  18  Howard,  71.     See  ante,  p.  512. 

3  The  C.  Accame,  20  Fed.  Rep.  642. 

*  The  Plymouth,  3  Wallace,  20;  The  Ottawa,  1  Brown  Ad.  Rep.  356. 

^  The  Philadelphia,  Wilmington,  &  Baltimore  R.  R.  Co.  v.  Tow  Boat  Co., 
23  Howard,  209;  Atlee  v.  Packet  Co.,  21  Wallace,  389  ;  Rock  Island  Bridge 
Co.,  6  Id.  213;  Leathers  v.  Blessing,  105  U.  S.  626;  Henry's  Admiralty 
Jurisdiction  and  Procedure,  sect.  26. 


1016  FLOATING  STRUCTURES. 

Floating  structures  which,  though  not  engaged  in  the 
transportation  of  goods  or  passengers,  are  ancillary  to  navi- 
gation have  sometimes  been  treated  as  within  the  rule,  on 
the  maxim  that  jurisdiction  should  be  judicially  enlarged, 
rather  than  justice  should  fail ;  but  in  Cope  v.  The  Valette 
Dry-Dock  Co.,^  a  floating  dry-dock,  constructed  for  the  pur- 
pose of  raising  ships  out  of  the  water  for  repairs,  and  having 
no  means  of  propulsion  of  its  own,  though  susceptible  of 
being  towed  from  place  to  place  as  occasion  might  require, 
was  held  to  aiford  no  more  ground  for  the  exercise  of  admi- 
ralty jurisdiction  in  rem  or  in  personam  than  if  it  stood  on 
the  soil.  It  seems,  however,  that  a  hopper-barge,  or  dredge, 
used  for  deepening  the  channel,  and  customarily  towed  for 
that  end  to  any  port  where  its  services  are  needed,  may  be 
the  subject  of  a  claim  for  salvage,  although  not  provided  with 
sails,  oars,  engines,  or  motive  power  of  any  other  kind.'-^ 

The  jurisdiction  includes  marine  torts  occasioned  by  the 
default  of  the  owner,  crew,  or  master  of  an  American  vessel, 
or  in  which  she  is  involved,  whether  committed  forcibly  or 
through  negligence,  in  whatever  part  of  the  glol)e  the}^  may 
occur;  and  may  be  exercised,  although  the  injury  was  in- 
flicted after  the  termination  of  the  vo3^age,  or  on  the  waters 
of  a  foreign  power,  and  might  have  been  redressed  under  its 
laws.^  Cognizance  may  also  be  taken  of  controversies  be- 
tween foreign  vessels  arising  from  a  collision  or  other  marine 
tort,  on  the  general  principle  —  which  applies  with  greater 
force  to  contracts  —  that  the  courts  should  afford  a  remedy 
where  they  have  jurisdiction  of  the  thing  or  the  parties,  in 
order  to  prevent  the  failure  of  justice  which  may  result  from 
delay.*  Whether  relief  will  be  given  in  such  cases  never- 
theless depends  on  the  circumstances,  which  should  be  care- 
fully considered ;  and  if  the  court  errs  in  the  exercise  of  its 

1  119  U.  S.  625. 

2  The  Mac,  7  P.  D.  126;  Cope  v.  The  Vallette  Dry  Dock  Co.,  119  U.  S. 
625,  630. 

8  See  Leathers  v.  Blessing,  105  U.  S.  626;  The  Eagle,  8  Wallace,  15. 
*  The  Belgenland,  114  U.  S.  355;  Mason  v.  The  Blaireau,  2  Cranch, 
240;  The  Jerusalem,  2  Gallison,  191;  1  Smith's  Lead.  Cas.  (8th  Am.  ed). 


FLOATING   STRUCTURES. 


1017 


discretion,  the  decision  may  be  reversed   under  a  writ  of 
error. 1 

The  jurisdiction  of  the  admiralty  is  so  far  exclusive  that 
whenever  it  does  or  might  attach  in  rem  or  personam^  no  pro- 
ceeding can  be  instituted  specifically  against  the  vessel  in  a 
national  or  State  tribunal,  either  customarily  or  under  an  au- 
thority conferred  by  statute.^  The  rule  admits  of  no  exception, 
and  applies  even  where,  as  in  the  case  of  supplies  furnished 
at  a  home  port,  the  ship  cannot  be  libelled  under  the  powers 
conferred  by  the  Constitution  and  laws  of  the  United  States, 
and  the  right  to  charge  her  is  derived  from  State  legislation.^ 
The  courts  of  common  law  or  of  equity  may  entertain  a  suit 
in  personam^  on  a  maritime  contract,  and  execute  the  decree 
or  judgment  by  attaching  the  vessel,  or  taking  it  in  execu- 
tion, as  in  the  case  of  other  chattels ;  *  but  they  cannot  pro- 
ceed against  the  vessel  in  rem^  or  affect  it  with  a  lien,  except 
through  their  jurisdiction  over  the  person  of  the  owner.^  A 
levy  on  a  vessel  by  the  sheriff,  followed  by  a  proceeding  in 
the  admiralty  in  rem^  may  place  both  courts  in  an  embar- 
rassing position,  by  rendering  it  difficult  to  ascertain  whether 
the  writ  which  was  served  last  in  point  of  time  is  or  is  not 
prior  as  regards  right ;  ^  and  such  controversies  would  be 
inevitable  if  the  State  tribunals  or  federal  courts  of  common 
law  were  authorized  to  proceed  in  rem.  As  jurisdiction  is 
now  distributed,  the  question  cannot  well  arise,  because  writs 


1  The  Belgenland,  114  U.  S.  355. 

2  The  Moses  Taylor,  4  Wallace,  411;  The  Hine  v.  Trevor,  Id.  556; 
The  Josephine,  39  N.  Y.  19,  27;  Brookman  v.  Hamill,  43  Id.  554,  555. 

8  The  Josephine,  39  K  Y.  19,  27;  Brookman  v.  Hamill,  43  Id.  554, 
563;  The  St.  Lawrence,  1  Black,  522;  The  Belfast,  7  Wallace,  624,  646; 
The  Hine  v.  Trevor,  4  Id.  555;  The  Moses  Taylor,  Id.  411. 

*  Carryl  v.  Taylor,  24  Pa.  259;  20  Howard,  583;  Leon  v.  Galceran,  11 
Wallace,  185. 

6  Brookman  v.  Hamill,  43  N.  Y.  554,  565;  The  Belfast,  7  Wallace, 
624,  616. 

«  See  Carryl  v.  Taylor,  21  Pa.  259;  20  Howard,  583;  2  Smith's  Lead- 
ing Cases,  973  (8th  Am.  ed.);  The  Robert  Fulton,  1  Paine,  620;  Provi- 
dence &  New  York  Steamship  Co.  v.  Hill  Manufacturing  Co ,  109  U.  S. 
578;  also  Hildreth's  History  of  the  United  States,  pp.  155,  164. 


1018  PROCEEDING   IN   BEM   AGAINST 

of  fieri  facias^  and  foreign  attachments,  are  not  in  rem^  but 
against  the  interest  of  the  defendant  in  the  thing  ;  and  they 
do  not  bind  the  rights  of  third  persons,  or  preclude  a  sale 
under  subsequent  proceedings  in  the  admiralty,  which  will 
divest  prior  liens,  and  confer  a  title  against  all  the  world. ^ 

Such  at  least  should  be  the  result  logically,  though  it  was 
decided  in  Taylor  v.  Carryl  that  a  vessel  which  has  been  taken 
in  execution  by  the  sheriff  under  a  fieri  facias^  or  attachment 
from  a  State  court,  is  within  the  rule  that  the  tribunal  which 
first  obtains  jurisdiction  will  retain  it  to  the  end,  and  that  a 
subsequent  seizure  by  the  marshal,  under  a  libel  for  mari- 
ners' wages,  will  not  enable  the  admiralty  to  proceed  in  rem^ 
or  order  a  sale  that  will,  supersede  the  rights  arising  under 
the  levy  made  by  the  sheriff.^  Taney,  Ch.-J.,  dissented  for 
reasons  which  appear  unanswerable,  and  the  only  ground  on 
which  the  decision  can  be  upheld  is  that  the  State  court  had 
ordered  the  vessel  to  be  sold  as  perishable  before  the  libel 
was  filed,  and  thus  obtained  the  jurisdiction  in  rem  which 
did  not  exist  under  the  attachment.^  The  question  arose  in 
the  Providence  &  New  York  Steamship  Co.  v.  Hill  Manufac- 
turing Co.,"*  under  the  act  of  1851,  providing  that  the  lia- 
bility of  owners  of  vessels  in  the  cases  therein  enumerated 
'*  shall  in  no  case  exceed  the  amount  of  their  interest  in  the 
ship  or  vessel ;  "  and  it  was  held  that  as  the  object  of  the 
act  could  not  be  effected  if  suits  could  be  brought  in  the 
State  courts,  the  jurisdiction  of  the  admiralty  was  necessarily 
exclusive.  It  followed  that  filing  a  libel  in  the  District 
Court  of  the  United  States  in  pursuance  of  the  act  super- 
seded an  action  which  had  been  brought  in  the  Supreme 
Court  of  Massachusetts  for  the  loss  by  fire  of  goods  which 
were  shipped  at  Providence  on  board  the  defendant's  steamer 

1  See  The  Moses  Taylor,  4  Wallace,  411,  431;  Taylor  r.  Carryl,  20 
Howard,  583,  617;  The  Hine  d.  Trevor,  4  Wallace,  555,  571;  Woodruff  v. 
Taylor,  20  Vt.  65;  Leon  y.  Galceran,  11  Wallace,  185;  Castrique  v.  Imrie, 
8  C.  B.,  N.  s.  1 ;  The  City  of  Mecca,  L.  R.  6  P.  D.  106. 

2  See  The  Oliver  Jordan,  2  Curtis,  414;  Keating  v.  Spink,  3  Ohio  St. 
105. 

»  2  Smith's  Lead.  Cas.  (8th  Am.  ed.)  911.  *  109  U.  S.  578. 


VESSEL  LEVIED   ON  BY  SHERIFF. 


1019 


*'  Oceanis "  for  transportation  to  New  York,  and  that  on 
serving  the  plaintiff  with  a  monition  from  the  admiralty  to 
proceed  no  further  with  the  suit,  it  became  his  duty  to  obey, 
and  the  judgment  subsequently  rendered  in  his  favor  by 
the  Massachusetts  court  might  be  reversed  by  the  Supreme 
Court  of  the  United  States.  The  claim  was  virtually  for 
the  distribution  of  a  fund,  and  justice  could  not  be  done 
without  brinorinor  it  before  a  tribunal  authorized  to  cite  all 
the  parties  and  to  award  each  his  share.  Relief  was  for- 
merly given  in  England  in  such  cases  through  a  bill  in 
equity,  but  might  now  be  attained  in  both  countries  in  the 
admiralty,  which  was  clothed  for  such  purposes  with  chan- 
cer}^ powers.  Whether  the  prohibition  of  injunctions  from 
the  Federal  to  the  State  courts  in  the  Judiciary  Act  of  1789 
did  or  did  not  apply  to  proceedings  under  the  act  of  1851, 
when  the  libel  in  the  admiralty  was  given  in  evidence  the 
State  court  should  have  obeyed  the  act  of  Congress  which 
declared  that  all  other  proceedings  should  cease. 

The  extension  of  admiralty  jurisdiction  to  torts  and  con- 
tracts which  were  originally  beyond  such  cognizance,  does 
not  oust  the  courts  of  common  law  or  preclude  the  injured 
party  from  instituting  a  suit  in  personam  in  either  jurisdic- 
tion.^  Covenant  may  accordingly  be  brought  in  a  State  court 
on  a  charter  party,  or  assumpsit  for  a  sailor's  wages,^  or  an 
action  on  the  case  for  a  collision,^  or  for  an  injury  inflicted 
on  a  passenger  through  the  negligence  of  the  master  or  mari- 
ners.* Such  at  least  is  the  rule  under  the  saving  clause  of 
the  Judiciary  Act  of  1789  ;5  but  it  might  presumably  be 
changed  by  Congress,  because  where  the  case  falls  within  the 
grant  of  judicial  power  the  jurisdiction  of  the  federal  courts 
may,  speaking  generally,  be  made  exclusive.^ 

1  The  Belfast,  7  Wallace,  624,  646. 

2  Leon  V.  Galcoran,  11  Wallace,  85. 

«  Schoonmaker  v.  Gilmore,  102  U.  S.  118. 

*  The  Belfast,  7  Wallace,  624,  645. 

^  American  Steamboat  Co.  v.  Chase,  16  Wallace,  522;  Schoonmaker 
V.  Gihnore,  102  U.  S.  118. 

6  Martin  v.  Hunter,  1  Wheaton,  304,  382;  The  Moses  Taylor,  4  Wal- 
lace, 4U,  431. 

VOL.  J  I.  —  :i4 


1020  CONTRACT  TO  BUILD   A  VESSEL. 

Congress  or  a  State  legislature  may  enlarge  the  remedy- 
on  maritime  contracts  by  authorizing  proceedings  in  rem  un- 
der circumstances  where  (as  in  the  case  of  supplies  furnished 
at  a  home  port)  such  a  suit  would  otherwise  fail,  and  the 
remedy  may  then  be  enforced  in  the  admiralty  ;  but  con- 
tracts which,  from  their  nature,  are  not  subject  to  admiralty 
jurisdiction,  cannot  be  brought  within  it  by  legislation,  be- 
cause the  jurisdiction  of  the  federal  courts  is  defined  by  the 
Constitution,  and  cannot  be  carried  farther  by  the  States  or 
the  General  Government,^  Contracts  to  do  work  or  furnish 
materials  for  the  construction  of  a  ship  fall  under  this  head, 
although  she  is  to  be  launched,  and  delivered  after  she  is 
afloat.2  And  it  has  been  held  to  follow  that  a  State  law  may 
give  the  contractors  and  material  men  a  lien,  and  authorize 
them  to  enforce  it  by  a  proceeding  in  rem^  —  which  must  be 
instituted  in  the  local  courts,  and  cannot  be  maintained  in  the 
admiralty.^  Such  a  result  would  seem  questionable,  because 
the  lien  so  created  may  endure  after  the  vessel  has  pro- 
ceeded on  her  voyage,  and  conflict  with  liens  arising  under 
the  maritime  law. 

While  locality  is  so  far  the  test  of  jurisdiction  that  no  re- 
covery can  be  held  in  the  admiralty  either  in  tort  or  contract, 
unless  the  waters  are  those  of  the  United  States  or  form 
part  of  the  ocean  which  is  the  common  highway  of  all  na- 
tions, the  fulfilment  of  this  condition  will  not  give  the  admi- 
ralty courts  jurisdiction  when  the  cause  of  action  does  not  fall 
in  other  respects  within  the  customary  and  recognized  powers 
of  such  tribunals.*  A  contract  for  the  construction  of  a  vessel 
is  an  instance  of  this  kind  ;  and  another  may  grow  out  of  the 

^  People's  Ferry  Co.  v.  Beers,  20  Howard,  393;  Roach  v.  Chapman, 
22  Id.  129;  The  St.  Lawrence,  1  Black,  522;  The  Lottawanna,  21  Wal- 
lace, 558,  609. 

2  Roach  V.  Chapman,  22  Howard,  129;  People's  Ferry  Co.  v.  Beers, 
Id.  393;  Foster  v.  The  Richard  Busteed,  100  Mass.  409;  Edwards  v.  Elli- 
ott, 34  N.  J.  Law,  96,  99;  21  Wallace,  532,  558;  Sheppard  v.  Steele, 
43  N.  Y.  52;  Brookman  r.  Hamill,  Id.  554,  565. 

3  Sheppard  v.  Steele,  43  N.  Y.  52  ;  Edwards  v.  Elliott,  34  N.  J.  Law, 
96;  21  Wallace,  532:  Scull  v.  Shakespear  75  Pa.  297,  304. 

4  The  Orleans  v.  Thomas-Phoebus,  11  Peters,  175. 


LIBEL  FOR  DEATH  THROUGH  NEGLIGENCE.         1021 

death  of  a  member  of  a  family  owing  to  the  negligence  or 
misfeasance  of  the  master  or  crew  of  the  vessel  against 
which  the  libel  is  filed.  The  right  of  action  became  extinct 
at  common  law  on  the  death  of  the  person  who  had  sustained 
the  injury,  and  a  suit  could  not  be  maintained  by  his  execu- 
tors or  the  surviving  members  of  the  family,  however  real 
their  loss.^  The  Pennsylvania  legislature  provided,  in  1855, 
that  whenever  death  was  occasioned  by  unlawful  violence  or 
negligence,  the  husband,  widow,  or  parents  of  the  deceased 
might  recover  damages  in  an  action  brought  within  one  year 
after  the  death,  and  not  later ;  and  similar  acts  have  been 
passed  in  many  of  the  other  States.  In  the  recent  case  of 
The  Harrisbuig2  the  question  arose  in  a  proceeding  insti- 
tuted by  the  widow  and  children  of  Silas  Ricards  against  the 
steamer,  "  Harrisburg,"  to  obtain  compensation  for  his  death 
from  a  collision  in  Vineyard  Sound  with  another  vessel,  which 
was  alleged  to  have  been  caused  by  the  steamer's  negligence  ; 
and  it  was  held  that  the  suit  stood  exclusively  on  the  statute, 
and  must  fail  because  it  was  not  instituted  until  after  the  lapse 
of  the  time  which  it  prescribed.     Waite,  C.  J.,  said :  — 

"  The  maritime  law,  as  accepted  and  received  by  maritime  na- 
tions generally  has  not  established  a  different  rule  for  the  govern- 
ment of  the  courts  of  admiraltj^  from  those  which  govern  courts  of 
law  in  matters  of  this  kind ;  and  we  are  forced  to  the  conclusion 
that  no  such  action  will  lie  in  the  courts  of  the  United  States  under 
the  general  maritime  law.  The  rights  of  persons  in  this  particular 
under  the  maritime  law  of  this  country  are  the  same  as  at  common 
law ;  and  as  it  is  the  duty  of  courts  to  declare  the  law  and  not 
to  make  it,  we  cannot  change  the  rule." 

The  admiralty  may  also  take  cognizance  of  seizures  of 
goods  and  chattels  as  enemy's  property,  or  forfeited  to  the 
United  States  for  a  breach  of  a  law  or  rule  made  by  Con- 

1  Insurance  Co.  v.  Brame,  95  U.  S.  754;  Goodsell  v.  The  Hartford  and 
New  Haven  R.  R.  Co.,  33  Conn.  51;  Green  v.  Hudson  River  R.  R.  Co., 
2  Keyes,  294. 

2  il9  U.  S.  199.     ' 


1022  FORFEITURES   AND  SEIZURES. 

gress.^  The  jurisdiction  is,  in  the  first  instance,  exclusive ; 
but  should  the  result  be  an  acquittal,  recourse  may  be  had  to 
a  common-law  action  in  a  State  or  federal  tribunal.^  It  was 
this  branch  of  admiralty  jurisdiction  which  brought  the  court 
into  disrepute  in  England,  as  proceeding  arbitrarily  without 
a  jury,  and  exercising  a  power  which  was  abused.  And  the 
case  of  Miller  v.  The  United  States  indicates  that  it  may  be 
employed  not  less  injuriously  here  as  a  means  of  confiscation 
on  the  ex  parte  affidavits  of  informers,  without  actual  notice 
to  the  parties  concerned,  or  an  opportunity  for  a  hearing. 

1  Hoyt  V.  Gelston,  3  Wheaton,  248;  Miller  v.  The  United  States,  11 
Wallace,  268;  Tyller  v.  Defrees,  Id.  331. 

2  Hoyt  V.  Gelston,  3  Wheaton,  324;  Slocum  v.  Mayberry,  2  Id.  9. 


LECTUKE  XLVII. 


Jurisdiction  from  the  Character  of  the  Parties.  —  Suits  by  and  against 
the  United  States.  — Ambassadors  and  Consuls.  — Where  a  State  is  a 
Party.  —  Controversies  between  Citizens  of  different  States.  —  To  give 
Jurisdiction  on  this  ground,  each  Party  on  one  side  must  be  of  a  dif- 
ferent State  from  all  on  the  other.  —  Where  such  is  the  case,  the 
Distribution  of  an  Estate,  the  Probate  of  a  Will,  Compensation  under 
the  Right  of  Eminent  Domain,  and  Pecuniary  Demands,  are  equally 
within  the  Jurisdiction  of  the  Circuit  Courts,  —  Corporations  are  citi- 
zens of  the  States  by  which  they  are  created.  —  Ancillary  Proceedings 
between  Citizens  of  different  States,  —  Residence  not  necessarily  Citi- 
zenship. —  Federal  Courts  limited,  but  not  inferior.  —  Where  the  Rec- 
ord does  not  show  Jurisdiction,  the  Judgment  is  erroneous,  though 
not  void.  —  Judgments  without  Jurisdiction  are  null,  and  may  be  set 
aside  Collaterally. 

The  remaining  ground  on  which  the  federal  courts  may 
exercise  a  concurrent  or  exclusive  jurisdiction  is  the  char- 
acter of  the  parties,  which  may  render  it  necessary  or  ex- 
pedient that  the  case  should  be  withdrawn  from  the  State 
courts  and  submitted  to  a  national  tribunal.  It  would,  for 
instance,  be  altogether  inconsistent  with  the  sovereignty  of 
the  United  States  as  defined  in  the  Constitution,  if  the  Na- 
tional Government  were  obliged  to  sue  in  the  State  tribunals. 
Where  a  law  of  the  United  States  is  violated  the  subject- 
matter  of  the  controversy  gives  the  federal  courts  jurisdiction  ; 
but  the  United  States  should  obviously  be  spared  the  neces- 
sity of  appearing  as  plaintiffs  or  defendants  in  the  State 
courts,  in  suits  arising  under  the  local  laws.  The  terms 
of  the  grant  are  therefore  general,  extending  to  all  cases 
in  which  the  United  States  are  parties.  These  words  are 
broad  enough  to  include  suits  against  the  United  States, 
as  well  as  cases  in  which  they  appear  as  plaintiffs  ;  but  Con- 
gress did  not  think  fit  to  provide  means  for  the  execution  of 


1024  COUET   OF  CLAIMS. 

the  former  branch  of  the  power,  and  hence  a  suit  cannot  be 
maintained  against  the  General  Government  for  any  wrong 
done  or  right  withheld  by  them  or  under  their  authority. 
This  want  has  to  a  great  extent  been  remedied  by  the  organ- 
ization of  a  court  of  claims  as  the  arbiter  of  controversies 
which  from  the  sovereignty  of  the  defendant  cannot  be  deter- 
mined in  the  ordinary  course  of  law.  The  judgments  of  this 
tribunal  are  conclusive  as  to  the  merits  of  all  demands  against 
the  United  States  arising  ex  contractu^  subject  to  an  appeal 
to  the  Supreme  Court  of  the  United  States ;  and  though  they 
cannot  be  enforced  by  process,  are  payable  on  the  presenta- 
tion of  a  certified  copy  of  the  writ,  if  any  general  appropri- 
ation has  been  made  for  the  satisfaction  of  private  claims.^ 
The  jurisdiction  does  not,  however,  extend  to  all  claims 
which  Congress  ought  to  provide  for  in  morals  and  good  con- 
science, and  only  embraces  such  as  are  cognizable  under  the 
general  principles  of  law  and  equity,  and  fall  within  the  scope 
of  the  statutes  by  which  the  court  was  organized.^ 

Although  the  United  States  are  by  virtue  of  their  sover- 
eignty exempt  from  process,  the  principle  does  not  apply  to 
suits  against  their  officers  or  agents  for  acts  done  or  property 
taken  or  withheld  on  their  behalf,  unless  the  act  was  not 
only  performed  under  an  authority  from  the  President  or 
Congress,  but  the  command  was  one  that  could  constitution- 
ally be  given ;  and  when  such  is  not  the  case  the  defendant 
is  simply  a  trespasser,  and  may  be  compelled  to  make  amends 
in  damages,  or  surrender  what  he  cannot  lawfully  retain,  as 
though  no  governmental  right  or  question  were  concerned.^ 

It  was  also  requisite  to  provide  a  common  and  impartial 
arbiter  for  the  determination  of  controversies  between  the 
States.     A  suit  against  a  sovereign  in  his  own  courts  must 

1  Richardson's  History  of  the  Court  of  Claims  (Washington,  1882), 
7  Southern  Law  Review,  n.  s.,  78L  See  The  United  States  v.  Jones, 
109  U.  S. 

2  See  Langford  v.  The  United  States,  101  U.  S.  341 ;  United  States  r. 
The  Pacific  R.  R.,  120  Id.  227,  241;  Great  Western  Ins.  Co.  v.  United 
States,  112  Id.  193. 

3  The  United  States  v.  Lee,  106  U.  S.  196 ;  Poindexter  v.  Greenhow, 
114  Id.  285;  see  ante,  889,  897. 


AMBASSADORS  AND  CONSULS. 


1025 


depend  on  his  good  pleasure,  and  may  meet  with  delays  and 
impediments  amounting  to  a  denial  of  justice ;  and  if  the 
plaintiff  succeeded  in  obtaining  judgment  there  would  still 
be  no  means  of  enforcing  the  decree.  These  reasons  were 
stated  with  great  clearness  in  the  Federalist,  No.  80,  and 
shown  to  apply  with  peculiar  force  to  controversies  arising 
out  of  interfering  claims  of  boundary  between  the  States. 
If  such  disputes  could  not  be  brought  before  the  courts  of 
the  Union  there  would  be  no  effectual  means  of  settlement, 
and  the  difficulty  might  result  in  intestine  war.  This  branch 
of  jurisdiction  has  been  exercised  on  more  than  one  occasion, 
and  always  with  beneficial  results.^ 

There  is  still  another  class  of  cases  requiring  the  interven- 
tion of  the  federal  courts.  An  ambassador  is  jure  gentium 
exempt  from  the  operation  of  the  local  or  municipal  law.  He 
stands  for  the  time  being  in  the  place  of  the  sovereignty 
which  he  represents,  and  should,  like  it,  be  free  from  restraint. 
If  the  privilege  is  disregarded  without  sufficient  cause  it  is  a 
ground  of  war ;  and  the  question  whether  such  a  cause  exists 
should  obviously  be  decided  by  a  tribunal  deriving  its  au- 
thority from  the  nation  on  which  the  burden  of  hostilities 
will  fall. 

All  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  are  therefore  within  the  judicial  power  of  the  United 
States,  which  may,  if  Congress  think  fit,  be  made  exclusive 
of  the  State  tribunals.^  One  considerable  object  of  the  fed- 
eral Constitution,  as  Chief-Justice  Tilghman  observed  in 
Manhardt  v.  Soderstrom,  was  to  vest  in  the  United  States  the 
administration  of  the  affairs  by  which  we  are  related  to  for- 
eign nations.  To  do  this  effectually  the  representatives  of 
those  nations  must  be  under  the  protection  of  the  United 
States ;  and  as  consuls,  although  not  entitled  to  the  privi- 
leges of  ministers,  often  exercise  important  functions,  they 


^  See  Rhode  Island  v.  Massachusetts,  15  Peters,  233;  4  Howard,  591; 
Porter  v.  Fleeger,  11  Peters,  185;  Missouri  v.  Iowa,  7  Howard,  660,  10 
Id.  1;  Missouri  v.  Kentucky,  11  Wallace,  395;  Virginia  v.  West  Virginia, 
Id.  39;  Ex  parte  Devol  Man.  Co.,  108  U.  S.  401. 

^  Manhardt  v.  Soderstrom,  1  Binney,  138. 


1026  JURISDICTION  FROM   THE 

were  included  in  the  same  clause,  and  enjoy  the  important 
privilege  of  suing  in  the  Supreme  Court  of  the  United 
States,  and  of  being  exempt  from  suit  in  the  State  courts, 
although  they  may  have  recourse  to  them  for  redress.  The 
grant  of  original  jurisdiction  to  the  Supreme  Court  in  cases 
affecting  the  ministers  of  foreign  powers  does  not,  it  seems, 
preclude  Congress  from  conferring  jurisdiction  on  the  sub- 
ordinate federal  courts.  The  district  courts  of  the  United 
States  may  take  cognizance  of  suits -against  consuls  in  their 
public  character,  and  an  action  may  be  sustained  in  the  cir- 
cuit courts  against  an  alien,  although  he  be  a  consul.^  As 
the  object  of  the  grant  is  to  confer  a  privilege,  and  not  to 
impose  a  disability,  the  representatives  of  foreign  powers 
may  choose  the  forum  in  which  to  sue,  and  a  prosecution 
may  be  instituted  in  a  circuit  court  of  the  United  States  for 
the  offence  of  offering  violence  to  an  ambassador  or  other 
public  minister.2 

It  was  also  requisite  in  a  nation  composed  of  many  States, 
whose  inhabitants  might  regard  each  other  with  jealousy  or 
suspicion,  to  have  some  arbiter  in  whose  fairness  all  would 
confide,  and  to  whom  every  citizen  might  appeal  in  cases 
where  he  had  reason  to  distrust  the  local  tribunals.  A  citi- 
zen of  one  State  suing  in  the  courts  of  another  might  appre- 
hend that  he  would  not  meet  with  even-handed  justice,  and 
even  if  the  suspicion  was  unfounded  it  would  tend  to  impair 
the  cordiality  which  ought  to  exist  throughout  the  Union. 
A  similar  evil  might  arise  if  a  foreigner  was  obliged  to  seek 
redress  in  tribunals  deriving  their  authority  from  the  State 
where  the  wrong  was  inflicted.  The  judicial  power  of  the 
United  States  was  therefore  extended  to  "  controversies  be- 
tween a  State  and  citizens  of  another  State,  between  citizens 
of  different  States,  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States,  and  between  a 
State    or   citizens    thereof    and   foreign    States,    citizens,   or 

1  Bors  V.  Preston,  111  U.  S.  252,  263.  See  United  States  v.  Ravara, 
2  Dallas,  297;  Graham  v.  Stucken,  4  Blatchford,  50. 

2  United  States  v.  Ortega,  11  Wheaton,  467.  See  The  Schooner  Ex- 
change V.  M'Fadden,  7  Cranch,  116. 


CHARACTER  OP  THE  PARTIES.  1027 

subjects."  In  all  these  instances  the  parties  might,  with 
more  or  less  reason,  apprehend  that  the  local  courts  would 
be  partial,  and  jurisdiction  was  conferred  on  the  national 
tribunals. 

In  determining  who  is  a  party  within  these  provisions, 
regard  will  be  had  to  the  persons  whose  names  appear  of 
record  as  the  legal  plaintiffs  or  defendants,  and  not  to  the 
persons  for  whose  use  the  suit  is  brought,  or  whose  interest 
will  be  affected  by  the  result.^  This  rule  may  not  always 
effect  the  purpose  which  the  Constitution  had  in  view,  but 
it  is  the  best  that  can  be  adopted  under  the  circumstances. 
If  controversies  between  citizens  of  the  same  State  could  be 
brought  within  the  reach  of  the  federal  courts  by  assigning 
the  cause  to  a  resident  in  another  State,  their  jurisdiction 
might  be  indefinitely  extended,  and  that  of  the  State  courts 
rendered  precarious.^  The  first  section  of  the  Judiciary  Act 
of  March  3,  1887,  declares,  "  nor  shall  any  district  or  circuit 
court  have  cognizance  of  any  suit  (except  upon  foreign  bills 
of  exchange)  to  recover  the  contents  of  any  promissory  note, 
or  other  chose  in  action,  in  favor  of  any  assignee  or  of  any 
subsequent  holder,  if  such  instrument  be  payable  to  bearer, 
and  be  not  made  by  any  corporation,  unless  such  suit  might 
have  been  prosecuted  in  such  court  to  recover  the  said  con- 
tents if  no  assignment  or  transfer  had  been  made  ;  "  ^  and  the 
previous  statutes  were  nearly  to  the  same  effect.*  These  pro- 
visions are  not  restricted  to  actions  at  law,  but  include  bills 
in  equity  to  foreclose  mortgages,  or  to  compel  the  specific 
performance  of  agreements.^ 

A  controversy  exists  within  the  meaning  of  the  Constitu- . 
tion  wherever  any  property  or  claim  of  the  parties  capable 

1  Osborn  v.  The  United  States  Bank,  9  Wheaton,  857. 

2  Barney  v.  Baltimore  City,  6  Wallace,  280;  Williams  v.  Nottaway, 
104  U.  S.  209 ;  Bernard's  Township  v.  Stebbins,  109  Id.  341. 

8  See  120  U.  S.  Appendix,  788. 

*  See  Bushnell  v.  Kennedy,  9  Wallace,  387,  for  the  rule  when  the  de- 
mand assigned  is  ex  delicto. 

6  Sheldon  v.  Sill,  8  Howard,  441 ;  Corbin  v.  Black  Hawk  County,  105 
U.  S.  659;  Bernard's  Township  v.  Stebbins,  109  Id.  341,  354. 


1028  CONTROVERSIES   BETWEEN  CITIZENS 

of  pecuniar}'-  estimation  is  the  subject  of  litigation,  and  is 
presented  by  the  pleadings  for  judicial  determination ;  ^  and 
a  case  between  parties  from  different  States  will  therefore 
not  be  less  within  the  jurisdiction  of  the  federal  courts,  origi- 
nally or  through  removal,  because  it  arises  in  the  course  of 
proceedings  for  the  distribution  of  an  estate  among  the  heirs, 
or  next  of  kin,  or  the  appropriation  of  private  property  for 
the  opening  of  a  street  or  other  public  use.^  When,  there- 
fore, a  controversy  with  regard  to  the  distribution  of  a  dece- 
dent's estate,  or  the  validity  of  his  will  involves  a  federal 
element,  or  when  all  the  litigants  on  one  side  are  citizens  of 
a  different  State  from  those  on  the  other,  the  proceeding 
may  be  instituted  in  or  removed  to  the  Circuit  Court,  not- 
withstanding the  delay,  expense,  and  inconvenience  incident 
to  such  a  change. 

The  phrase  "  controversies  between  citizens  of  different 
.  States  "  may  mean  that  all  the  parties  on  one  side  must  be  of 
a  different  State  from  those  on  the  other,  or  that  it  is  enough 
if  one  or  more  of  them  are  of  different  States,  no  matter 
where  the  others  reside  or  are  domiciled.  Either  view  seems 
to  be  admissible,  but  the  courts  have  inclined  to  the  former 
interpretation ;  and  when  the  point  arose  in  the  Removal 
Cases,^  the  court  so  construed  the  words  of  the  second  section 
of  the  act  of  March  3,  1875,  which  are  identical  with  those 
used  in  the  Constitution,  and  adhered  to  this  construction  in 
Blake  v,  McKim,*  though  all  the  defendants  united  in  the 
petition.  Such  a  conclusion  was  the  more  natural  because 
the  act  of  1875  flooded  the  courts  with  a  multitude  of  causes 
foreign  to  its  legitimate  province  as  the  guardian  and  inter- 
preter of  the  Constitution,  and  produced  a  delay  which  in 
some  instances  was  equivalent  to  a  denial  of  justice.^ 

1  Gaines  v.  Fuentes,  92  U.  S.  10,  27. 

2  Boom  Co.  V.  Patterson,  90  U.  S.  403;  The  Pacific  Railroad  Removal 
Cases,  115  U.  S.  1,  25;  Searl  v.  School  District,  124  Id.  197. 

8  100  U.  S.  457.  4  103  U.  S.  336. 

fi  See  Sheldon  v.  Sill,  8  Howard,  441;  Barney  v.  Baltimore  City,  6  Wal- 
lace, 280;  The  Sewing  Machine  Co.,  18  Id.  553;  Williams  v.  Nottaway, 
104  U.  S.  209;  Bernard's  Township  v.  Stebbins,  109  Id.  341;  The  Re- 
moval Cases,  100  Id.  457 ;  Blake  v.  McKim,  103  Id.  336,  339. 


OF  DIFFBRENT  STATES. 


1029 


Under  the  Judiciary  Act  of  1789  the  right  of  removal 
was  confined  to  the  defendant,  and  a  suitor  who  came  as  a 
plaintiff  into  a  State  court  could  not  transfer  the  cause  to 
a  circuit  court,  although  the  opposite  party  was  a  citizen  of 
the  State,  and  might  be  unduly  favored  by  her  tribunals. 
The  act  of  1867  provided  that  where  the  controversy  was 
between  a  citizen  of  the  State  where  the  suit  was  brought 
and  a  citizen  of  another  State,  the  latter,  whether  plaintiff 
or  defendant,  might,  on  filing  an  affidavit  that  he  had  reason 
to  apprehend  prejudice  or  local  influence,  remove  such  suit 
into  the  Circuit  Court.  This  act  was  elaborately  reviewed  in 
the  case  of  The  Sewing  Machine  Co.  by  Mr.  Justice  Clifford, 
who  held  that  it  was  nearly  analogous  to  the  act  of  1879  and 
should  receive  a  like  construction,  and  that  no  cause  could 
be  removed  under  its  provisions  if  any  person  on  either  side 
was  from  the  same  State  with  one  or  more  of  the  persons  on 
the  opposite  side.  This  view  has  been  adhered  to  through- 
out the  subsequent  course  of  decision  ;  ^  and  was  confirmed 
in  The  Cambria  Iron  Co.  v.  Ashburn,^  and  in  The  Bible  So- 
ciety V.  Grove.^ 

In  the  Removal  Cases  *  the  provision  of  the  act  of  March  3, 
1875,  that  "  in  any  suit  of  a  civil  nature  ...  in  any  State 
court  .  1  .  in  which  there  shall  be  a  controversy  between 
citizens  of  different  States,  .  .  .  either  party  may  remove 
said  suit  into  the  Circuit  Court  of  the  United  States,"  —  was 
held  to  mean  that "  when  the  controversy  is  between  citizens  of 
one  or  more  States  on  the  one  side  and  citizens  of  other  States 
on  the  other  side,  either  party  to  the  controversy  may  remove 
the  suit  to  the  Circuit  Court  without  regard  to  their  position . 
on  the  record  as  plaintiffs  or  defendants  ; "  thus  giving  the 
phrase  "  between  citizens  of  different  States  "  the  same  inter- 
pretation which  that  phrase  had  received  when  like  questions 
arose  under  prior  acts.  Bradley,  Swayne,  and  Strong,  J  J., 
concurred  in  the  judgment,  but  dissented  from  so  much  of 

1  Vannevar  v.  Bryant,  21  Wallace,  41 ;  Myers  v.  Swann,  107  Id.  546. 

2  118  U.  S.  54,  57. 
8  101  Id.  610. 

4  100  Id.  457. 


1030         EACH  PARTY   ON  ONE  SIDE  MUST  BE   OF  A 

the  opinion  as  assumed  that  one  condition  of  federal  juris- 
diction in  the  removal  of  a  cause  from  a  State  court  under 
the  first  clause  of  section  2,  act  of  1875,  is  that  "  each  party 
on  one  side  of  the  controversy  must  be  a  citizen  of  a  dif- 
ferent State  from  that  of  which  any  of  the  parties  on  the 
other  side  is  a  citizen."  ^ 

The  question  whether  a  case  in  which  any  party  on  either 

1  "  This  portion  of  the  act,"  said  Bradley,  J.,  "gives  the  right  of  removal 
in  any  suit  in  which  there  is  a  controversy  between  citizens  of  different 
States.  In  my  judgment,  such  a  controversy  exists  whenever  any  of  the 
parties  are  citizens  of  a  different  State  or  States  from  that  of  which  any 
of  the  parties  on  the  other  side  are  citizens.  It  is  true,  if  there  are  other 
parties  on  opposite  sides  of  the  controversy  who  are  citizens  of  a  common 
State,  it  may  also  be  a  controversy  between  citizens  of  the  same  State.  In 
other  words,  a  controversy  may  be,  at  the  same  time,  both  a  controversy 
between  citizens  of  the  same  State  and  between  citizens  of  different  States. 
But  the  fact  that  it  is  both  does  not  take  away  the  federal  jurisdiction. 
Neither  the  Constitution  nor  the  law  declares  that  there  shall  not  be  such 
jurisdiction  if  any  of  the  contestants  on  opposite  sides  of  the  controversy 
are  citizens  of  the  same  State ;  but  they  do  declare  that  there  shall  be  such 
jurisdiction  if  the  controversy  is  between  citizens  of  different  States. 
^  The  gift  of  judicial  power  by  the  Constitution,  and  the  gift  of  jurisdiction 
by  the  law,  are  in  affirmative  terms  ;  and  those  terms  include  as  well  the 
case  when  only  part  of  the  contestants  opposed  to  each  other  are  citizens 
of  different  States,  as  that  in  which  they  are  all  of  different  States.  And 
I  see  no  good  reason  why  both  the  Constitution  and  the  law  should  not 
receive  a  construction  as  broad  as  that  of  the  terms  which  they  employ. 
On  the  contrary,  I  think  there  is  just  reason  for  giving  to  those  terms 
their  full  effect.  The  object  of  extending  the  judicial  power  to  contro- 
versies between  citizens  of  different  States  was,  to  establish  a  common 
and  impartial  tribunal,  equally  related  to  both  parties,  for  the  purpose  of 
deciding  between  them.  This  object  would  be  defeated  in  many  cases  if 
'  the  fact  that  a  single  one  of  the  many  contestants  on  one  side  of  the  con- 
troversy being  a  citizen  of  the  same  State  with  one  or  more  of  the  con- 
testants on  the  other  side,  should  have  the  effect  of  depriving  the  federal 
courts  of  jurisdiction.  This  absurdity  became  so  glaring  under  the  con- 
struction formerly  given  by  this  court  to  the  Judiciary  Act  of  1789,  in  the 
case  of  corporations,  when  every  stockholder  was  held  to  be  a  party,  that 
the  court  was  at  length  impelled  to  regard  a  corporation  as  a  citizen  of 
the  State  which  created  it,  without  regard  to  the  citizenship  of  its  mem- 
bers, —  thus  getting  rid  of  the  troublesome  stockholder  who  happened  to 
be  a  citizen  of  the  same  State  with  the  opposite  party,  and  who  almost 
always  appeared  in  the  case." 


DIFFERENT   STATE  PROM  ALL  ON  THE   OTHER.      1031 

side  is  a  citizen  of  a  different  State  from  any  one  or  more  of 
the  parties  on  the  other  side  is  within  the  grant  of  judicial 
power  to  the  United  States,  although  all  the  other  parties 
are  from  the  same  State,  was  not  necessarily  at  issue  in  these 
instances,  which  turned  on  the  language  of  the  enactments 
made  to  carry  the  power  into  effect ;  but  such  a  construction 
would  seem  to  be  objectionable,  as  tending  to  deprive  the 
citizens  of  a  State  of  the  benefit  of  its  tribunals  in  cases  arising 
under  its  laws  and  not  involving  any  federal  question.^ 

The  rule  applies  whether  the  cause  of  action  is  ex  contractu 
or  ex  delicto^  and  although  the  defendants  answer  in  pleading 
by  tendering  distinct  issues,  and  the  statutes  regulating  the 
course  of  procedure  allow  several  judgments  to  be  entered 
for  one  or  more  of  the  plaintiffs,  so  that  the  action  may  be 
maintained  as  to  some  of  the  parties  and  fail  as  to  the  others.^ 

It  is  now  settled,  contrary  to  the  rule  laid  down  in  the 
earlier  decisions,  that  for  all  the  purposes  of  original  jurisdic- 
tion or  of  removal,  a  corporation  must  be  regarded  as  a  citizen 
of  the  State  by  which  it  was  created.  The  presumption  is 
juris  de  jure^  and  cannot  be  overcome  by  proof  that  some  or 
all  of  the  corporators  are  citizens  of  the  same  State  as  the 
parties  on  the  other  side  of  the  record,  and  could  not  bring 
or  remove  the  suit  as  individuals,  or  but  for  the  corporate 
existence  conferred  by  the  charter.^  In  The  Steam-ship  Co. 
V.  Tugman  *  the  rule  was  applied  to  companies  chartered  by 
a  foreign  government,  and  it  was  held  that  they  may  proceed 
in  the  federal  courts  whenever  that  privilege  would  be  ac- 
corded to  a  citizen  or  subject  of  the  country  from  which  they 
derive  their  origin.^ 

1  See  Bryant  v.  Rich,  106  Mass.  180 ;  Sewing  Machine  Co.,  18  Wallace, 
553. 

2  Louisville  &  Nashville  R.  R.  Co.  v.  Ide,  114  U.  S.  52;  Pirie  v.  Tvedt, 
115  Id.  41,  45;  Sloane  v.  Anderson,  117  Id.  275;  Thorn  Wire-hedge  Co.  v. 
Fuller,  122  Id.  535,  543. 

«  Marshall  v.  Baltimore  &  Ohio  R.  R.  Co.,  16  Howard,  314;  Louis- 
ville, Cincinnati,  &  Charleston  R.  R.  Co.  v.  Letson,  2  Id.  407;  Ohio  & 
Mississippi  R.  R.  Co.  v.  Wheeler,  1  Black,  286;  Insurance  Co.  v.  Ritchie, 
5  Wallace,  541.  *  io6  U.  S.  118. 

^  "  The  underlying  question  in  this  case  is,  whether,  within  the  mean- 


1032  CITIZENSHIP   OF   COEPORATIONS. 

Where  a  company  is  incorporated  by  two  States,  and  a 
citizen  of  one  of  them  proceeds  against  it  in  another,  the 
suit  is  wholly  among  citizens  of  different  States,  because  a 
charter  has  no  extra-territorial  operation,  or  rather,  because 
any  partiality  which  may  arise  from  the  defendants  being 
established  in  the  State  where  the  action  is  instituted,  can- 
ing of  the  Constitution  and  of  the  statutes  determining  the  jurisdiction  of 
the  circuit  courts  of  the  United  States,  and  regulating  the  removal  of 
causes  from  State  courts,  a  corporation  created  by  the  laws  of  a  foreign 
State  may,  for  the  purposes  of  suing  and  being  sued  in  the  courts  of  the 
Union,  be  treated  as  a  '  citizen  '  or  '  subject '  of  such  foreign  State.  In 
Ohio  &  Mississippi  R.  R.  Co.  v.  Wheeler  (1  Black,  286),  the  court,  speak- 
ing by  Mr.  Chief -Justice  Taney,  said  that  in  the  previous  case  of  Louis- 
ville, Cincinnati,  &  Charleston  R.  R.  Co.  v.  Letson  (2  Howard,  497)  it 
has  been  decided,  upon  full  consideration,  '  that  where  a  corporation  is 
created  by  the  laws  of  a  State,  the  legal  presumption  is  that  its  members 
are  citizens  of  the  State  in  which  alone  the  corporate  body  has  a  legal  ex- 
istence; and  that  a  suit  by  or  against  a  corporation,  in  its  corporate 
name,  must  be  presumed  to  be  a  suit  by  or  against  citizens  of  the  State 
which  created  the  corporate  body ;  and  that  no  averment  or  evidence  to  the 
contrary  is  admissible  for  the  purposes  of  withdrawing  the  suit  from  the 
jurisdiction  of  a  court  of  the  United  States.'  Marshall  v.  Baltimore  & 
Ohio  R.  R.  Co.,  16  Howard,  314;  Covington  Drawbridge  Co.  v.  Shepherd, 
20  Id.  227;  Insurance  Co.  v.  Ritchie,  5  Wallace,  541;  Paul  v.  Virginia, 
8  Id.  168;  Railroad  Co.  v.  Harris,  12  Id.  65.  To  the  rule,  thus  estab- 
lished by  numerous  decisions,  the  court  adheres.  Upon  this  branch  of 
the  case  it  is,  therefore,  only  necessary  to  say  that  if  the  individual  mem- 
bers of  a  corporation  created  by  the  laws  of  one  of  the  United  States  are, 
for  purposes  of  suit  by  or  against  it  in  the  courts  of  the  Union,  conclu- 
sively presumed  to  be  citizens  of  the  State  by  whose  laws  that  corporation 
is  created  and  exists,  it  would  seem  to  follow,  logically,  that  the  m'embers 
of  a  corporation  created  by  the  laws  of  a  foreign  State  should,  for  like 
purposes,  be  conclusively  presumed  to  be  citizens  or  subjects  of  such  for- 
eign State.  Consequently,  a  corporation  of  a  foreign  State  is,  for  pur- 
poses of  jurisdiction  in  the  courts  of  the  United  States,  to  be  deemed, 
constructively,  a  citizen  or  subject  of  such  State."  Steamship  Co.  v. 
Tugman,  106  U.  S.  118. 

It  follows  that  if  a  State  court  refuses  to  make  an  order  of  removal  at 
the  instance  of  a  company  incorporated  by  another  State  or  foreign  gov- 
ernment, and  proceeds  with  the  cause,  the  proceeding  will  be  coram  non 
judice ;  and  a  judgment  rendered  against  the  company  must  be  reversed, 
although  they  did  not  protest  against  the  refusal,  and  appeared  before  the 
referee  to  whom  the  suit  was  sent  for  adjudication. 


ANCILLARY  PROCEEDINGS.  1033 

not  be  supposed  to  be  lessened  by  the  fact  that  they  are  also 
chartered  in  another  State. 

Ancillary  proceedings  to  regulate  actions  or  judgments  in 
the  same  court,  or  to  ascertain  who  is  the  owner  of  property 
which  has  been  seized  or  sold  by  the  sheriff  or  marshal,  take 
their  color  as  regards  jurisdiction  from  the  suit  of  which 
they  are  an  offshoot.  If  that  is  within  the  grant  of  judicial 
power  to  the  United  States,  so  also  will  the  subsidiary  pro- 
ceeding be,  although  containing  no  federal  element,  and  in- 
capable of  being  maintained  in  a  circuit  court  of  the  United 
States  if  it  stood  alone.^  So  a  federal  court  may  enjoin  an 
abuse  of  its  process,  although  the  parties  against  whom  relief 
is  sought  are  citizens  of  the  same  State  as  the  complainant.^ 
This  decision  was  cited  and  approved  in  Freeman  v.  Howe,^ 
where  the  principle  was  said  to  be  "  that  a  bill  filed  on  the 
equity  side  of  the  court  to  restrain  or  regulate  judgments  or 
suits  at  law  in  the  same  court,  and  thereby  prevent  injustice, 
or  an  inequitable  advantage  under  mesne  or  final  process,  is 
not  an  original  suit,  but  ancillary  and  dependent,  —  supple- 
mentary merely  to  the  original  suit  out  of  which  it  arose,  — 
and  is  maintained  without  reference  to  the  citizenship  or 
residence  of  the  parties.^ 

If,  on  the  other  hand,  the  principal  suit  be  in  a  State  court, 
and  exclusively  cognizable  there,  the  ancillary  proceeding 
will  have  the  same  character,  and  cannot  be  removed  to  a 
federal  court,  whether  the  parties  to  it  are  or  are  not  citizens 
of  different  States.^ 

In  The  Bank  v.  Turnbull,^  judgment  was  obtained  in  a 
Virginia  court  in  a  suit  between  citizens  of  the  State,  and  a 

1  Freeman  v.  Howe,  24  Howard,  450;  Krippendorf  v.  Hyde,  110  U.  S. 
276,  287;  Pacific  R.  R.  Co.  v.  Missouri  Pacific  R.  R.  Co.,  Ill  Id.  505-, 
Gumbel  v.  Pitkin,  124  Id.  131. 

«  Gue  r.  The  Tidewater  Canal  Co.,  24  Howard,  257. 

8  24  Howard,  450. 

*  "See  Buck  v.  Colbath,  3  Wallace,  334;  Amis  v.  Myers,  16  Howard, 
492;  Sennock  v.  Coe,  23  Id.  117;  Dunn  v.  Clarke,  8  Peters,  1;  Kendall  v. 
Winsor,  6  R.  I.  453,  462.     See  22  Wallace,  280. 

6  Bank  v.  TurnbuU,  16  WaUace,  190;  Krippendorf  y.  Hyde,  110  U.  S. 
276,  287.  •  6  16  Wallace,  190. 


1034  JURISDICTION  MUST  APPEAR 

levy  made  on  goods  as  the  property  of  the  defendant.  They 
were  claimed  by  a  citizen  of  another  State ;  and  an  inter- 
pleader having  been  ordered  between  him  and  the  judgment 
creditor  to  ascertain  the  title,  it  was  held  that  he  could  not 
transfer  the  issue  to  a  federal  court,  because  "  it  was  merely 
auxiliary  to  the  original  action,  and  instituted  to  enable  the 
court  to  determine  whether  its  process  had,  as  was  claimed, 
been  misapplied." 

An'  action  of  assumpsit,  or  trespass  de  bonis  asportatis,  may 
be  maintained  in  the  circuit  courts  of  the  United  States, 
although  the  pleadings  do  not  disclose  that  the  case  involves 
a  federal  question,  or  arose  under  the  Constitution  and  laws, 
of  the  United  States,  if  the  fact  appears  in  evidence  or  from 
the  rulings  of  the  judge ;  but  where  jurisdiction  depends  on 
the  character  of  the  parties,  the  necessary  facts  must  be  set 
forth  by  the  pleader,  and  will  not  be  inferred  argumenta- 
tively  in  the  absence  of  precise  averment.^  An  allegation 
that  the  defendant  is  a  corporation  chartered  by  the  State  of 
Missouri,  and  that  the  plaintiffs  reside  in  New  York,  is  not 
therefore  sufficient,  because  residence  is  not  necessarily  dom- 
icil  or  citizenship.2  So  a  consul  will  not  be  presumed  to  be 
the  subject  of  the  foreign  government  by  which  he  is  ap- 
pointed ;  and  if  jurisdiction  depends  on  his  alienage,  it  must 
be  averred. 3 

For  a  like  reason  it  is  not  enough  to  aver  that  the  intestate 
was  a  citizen  of  another  State,  and  that  the  plaintiff  took  out 
letters  of  administration,  because  jurisdiction  depends  on  the 
domicil  of  the  party,  and  not  on  the  origin  or  locality  of  the 
demand  for  which  the  suit  is  brought.*     It  is  immaterial  that 

1  Brown  v.  Keene,  8  Peters,  112;  Raihvay  Co.  v.  Ramsey,  22  Wallace, 
322;  Briges  v.  Sperry,  95  U.  S.  401;  Robertson  v.  Cease,  97  Id.  646; 
Mansfield,  Cold  water,  &  Lake  Michigan  R.  R.  Co.  v.  Swan,  111  Id.  379; 
Everhart  v.  Huntsville  College,  120  Id.  223;  King  Bridge  Company  v. 
Otoe,  120  Id.  225. 

2  Grace  v.  The  American  Central  Insurance  Co.,  109  U.  S.  278;  Ever- 
hart V.  Huntsville  College,  120  Id.  223. 

8  Bois  u.  Preston,  111  U.  S.  252,  263. 

*  Continental  Insurance  Co.  v.  Rhoads,  119  U.  S.  237. 


AFFIRMATIVELY  OF  RECORD.  1035 

the  objection  is  not  made  on  either  side,  because  the  court 
will  note  that  it  exists,  and  proceed  accordingly,  —it  being 
an  inflexible  rule  that  the  judicial  power  of  the  United  States 
must  not  be  exerted  in  a  case  beyond  its  scope,  although  it 
is  invoked  by  both  parties.^ 

It  is  not  an  objection  to  the  institution  of  proceedings  in 
the  Circuit  Court,  on  the  ground  of  citizenship,  to  establish 
or  controvert  the  validity  of  a  will,  or  for  the  distribution  of 
the  assets  of  a  decedent  among  the  heirs  or  next  of  kin,  that 
the  court  has  no  procedure  adapted  to  such  an  end,  and  that 
proceedings  of  this  nature  are  by  the  law  and  practice  of  the 
State  confined  to  tribunals  specifically  established  for  the 
purpose,  and  answering  to  the  English  ecclesiastical  courts. 
The  argument  ah  inconvenienti  will  be  presumed  to  have 
been  considered  by  the  legislature,  and  does  not  afford  a 
sufficient  ground  for  declining  to  fill  the  measure  of  the 
jurisdiction  prescribed  in  the  Constitution  and  conferred  by 
Congress.2 

The  federal  courts  cannot  take  cognizance  of  any  case 
which  is  not  manifestly  within  the  grant  of  judicial  power 
to  the  United  States ;  ^  and  when  the  question  arises  upon  a 
writ  of  error  or  appeal,  the  presumption  is  against  the  juris- 
diction of  the  court  below,  and  if  it  does  not  appear  affirma- 
tively the  judgment  will  be  reversed.*    To  justify  the  reversal 

1  Mansfield,  Coldwater,  &  Lake  Michigan  R.  R.  Co.  v.  Swan,  111 
U.  S.  379;  Kin^  Bridge  Company  v.  Otoe,  120  Id.  225.  See  The  Dred 
Scott  Case,  19  Howard,  393,  663,  where,  however,  the  court  authorita- 
tively decided  against  the  claimant's  right,  while  holding  that  he  had 
no  standing  in  court. 

2  Hyde  v.  Stone,  20  Howard,  170;  Payne  v.  Hook,  7  Wallace,  425;  14 
Id.  252;  Gaines  v.  Fuentes,  92  U.  S.  10;  Ellis  v.  Davis,  109  Id.  485,  504. 

*  Bingham  v.  Cabot,  3  Dallas,  383  ;  Abercrombie  r.  Duprees,  1  Cranch, 
343;  Piper  v.  Fordyce,  119  U.  S.  469;  Germania  Insurance  Co.  v.  Wis- 
consin, Id.  473;  Halsted  v.  Buster,  Id.  341. 

*  Robertson  t\  Crease,  97  U.  S.  646 ;  Grace  v.  American  Central  Insur- 
ance Co.,  109  Id.  278,  283;  Boies  v.  Preston,  111  Id.  252;  Continental 
Life  Insurance  Co.  u.  Rhoades,  119  Id.  237;  King  Bridge  Co.  v.  Ottoe 
County,  120  Id.  225.  "  That  the  point  as  to  jurisdiction  is  not  made  by 
either  party  is  immaterial,  because,  as  was  said  in  Mansfield  i\  Railway 
Co.  V.  Swan,  111  U.  S.  379,  382,  the  rule  springing  from  the  nature  and 

VOL.  II.  —  25 


1036  CIRCUIT   COURTS  LIMITED, 

of  a  State  court  by  the  Supreme  Court  of  the  United  States, 
it  must  consequently  appear  not  only  that  a  federal  question 
may  have  been  decided  adversely  to  the  United  States,  but 
that  such  was  actually  the  case.  The  object  of  the  grant  of 
appellate  jurisdiction  is  not  to  correct  the  errors  of  the  State 
courts  in  the  administration  of  the  local  law,  or  the  general 
principles  of  jurisprudence,  but  to  ascertain  whether  their 
judgments  conflict  with  the  rules  laid  down  in  the  Constitu- 
tion or  by  Congress.  When,  therefore,  the  plaintiff  in  the 
court  below  claims  a  right,  privilege,  or  exemption,  under  the 
Constitution,  and  judgment  is  rendered  for  the  defendant  on 
other  grounds,  the  Supreme  Court  will  not  inquire  into  their 
sufficiency,  except  so  far  as  may  be  necessary  to  show  that 
they  are  real,  and  were  not  resorted  to  for  the  purpose  of 
evading  the  rule  relied  on  by  the  plaintiff.^ 

It  is  at  the  same  time  established  that  the  circuit  courts 
of  the  United  States  are  not  inferior  in  the  technical  sense 
of  the  term,  and  while  their  proceedings  may  be  reversed  if' 

limits  of  the  judicial  power  of  the  United  States  is  inflexible  and  without 
exception,  which  requires  the  court  of  its  own  motion  to  deny  its  own 
jurisdiction,  and  the  exercise  of  its  appellate  power,  and  that  of  the 
other  courts  of  the  United  States,  in  all  cases  where  such  jurisdiction 
does  not  affirmatively  appear  in  the  record  on  which,  in  the  exercise  of 
that  power,  it  is  called  to  act.  On  every  writ  of  error  or  appeal,  the  first 
and  fundamental  question  is  that  of  jurisdiction,  first,  of  this  court,  and 
then  the  court  from  which  the  record  comes."  King  Bridge  Co.  v.  Ottoe 
County,  120  U.  S.  225.  See  also  Hancock  v.  Holbrook,  112  Id.  229, 
231. 

1  Brooks  y.  Missouri,  124  U.  S.  394,  400;  Murdock  v.  Memphis,  20 
Wallace,  590;  Choteau  v.  Gibson,  111  U.  S.  200;  Chapman  v.  Goodnow, 
123  Id.  540,  548;  Brooks  v.  Missouri,  124  Id.  394;  Miller  y.  Brown,  16 
Peters,  525;  Lawlor  v.  Walker,  14  Howard,  152;  Railroad  Co.  v.  Rock, 
4  Wallace,  177.  The  conflict  of  a  State  law  with  the  Constitution  of  the 
United  States,  and  a  decision  by  a  State  court  in  favor  of  its  validity, 
must  appear  on  the  face  of  the  record  before  it  can  be  re-examined  in 
this  court;  and  it  must  appear  in  the  pleadings  of  the  suit,  or  from  the 
evidence  in  the  course  of  trial,  in  the  instructions  asked  for,  or  from  ex- 
ceptions taken  from  the  ruling  of  the  court.  It  must  be  that  such  a 
question  was  necessarily  involved  in  the  decision,  and  that  the  State 
court  would  not  have  given  judgment  without  deciding  it.  Lawler  v. 
Walker,  14  Howard,  152. 


BUT  BTOT  INPERIQE.  1037 

jurisdiction  does  not  appear  affirmatively,  they  cannot  be  im- 
peached collaterally,  or  treated  as  void,  unless  the  cause  is 
so  entirely  foreign  to  the  powers  of  the  court  as  to  be  neces- 
sarily beyond  its  cognizance.^  To  render  a  judgment  of  a 
district  or  circuit  court  of  the  United  States  a  nullity  while 
still  standing  and  unreversed,  there  must  consequently  be  a 
plain  want  of  authority,  as  distinguishable  from  its  erroneous 
exercise,  or  the  failure  of  the  record  to  show  that  the  condi- 
tions as  to  citizenship  were  fulfilled.^  In  McCormick  v.  Sul- 
livant,^  a  decree  in  a  former  suit  was  pleaded  in  bar  of  the 
action.  To  this  a  replication  was  filed,  alleging  that  the  pro- 
ceedings in  the  former  suit  were  coram  non  judice,  the  record 
not  showing  that  the  complainants  and  defendants  in  that 
suit  were  citizens  of  different  States ;  but  the  Supreme  Court 
held  on  appeal  that  the  courts  of  the  United  States  are  of 
limited,  but  not  of  inferior  jurisdiction.  If  the  jurisdiction 
be  not  alleged  in  the  proceedings,  their  judgment  and  de- 
crees may  be  reversed ;  but  until  reversed,  they  are  conclu- 
sive between  the  parties  and  their  privies.  They  are  not 
nullities.* 

It  follows  that  if  a  cause  is  brought  by  a  writ  of  error,  or 
on  appeal,  before  the  Supreme  Court,  and  affirmed  on  the 
merits,  the  decision  will  be  final  and  conclusive,  although  the 
case  was  not  originally  —  from  its  nature  or  the  character  of 
the  parties — within  the  grant  of  judicial  power  to  the  United 
States,  because  there  is  no  longer  any  tribunal  that  can  note 
the  defect." 

On  the  other  hand,  a  judgment  which  manifestly  exceeds 
or  lies  without  the  power  of  the  court  is  null,  and  may  be 
shown  to  be  so  in  the  course  of  any  subsequent  or  collateral 
proceeding.^     This  rule  applies  to  the  decision  of  all  courts, 

1  Grignon  Lessee  v.  Astor,  2  Howard,  319. 

2  Des  Moines  Navigation  Co.  v.  Iowa  Homestead  Co. ,  123  U.  S.  552. 
8  10  Wheaton,  192. 

*  Des  Moines  Navigation  Co.  v.  Iowa  Homestead  Co.,  123  U.  S.  552, 
557. 

^  Des  Moines  Navigation  Co.  v.  Iowa  Homestead  Co.,  123  U.  S.  552. 
6  Elliott  V.  Piersol,  1  Peters,  328,  340;  Thompson   v.  Whitman,  18 


1038  JUDGMENTS  WITHOUT 

whether  of  inferior  or  superior  jurisdiction,  because  no  au- 
thority which  is  derived  from  the  law  can  transcend  the 
source  from  whence  it  came.^  A  criminal  information  in  the 
Court  of  Common  Pleas,  or  a  common  recovery,  or  writ  of 
right  in  the  King's  Bench,  would  have  been  simply  void  as 
between  the  parties  to  the  cause,  and  could  not  be  pleaded 
in  justification  for  acts  done  under  them  by  the  officers  of  the 
court.2  This  appears  from  the  leading  case  of  the  Marshalsea,^ 
where  it  is  said  that  "  when  the  court  has  not  jurisdiction  of 
the  cause,  there  the  whole  proceeding  is  coram  non  judice, 
and  actions  will  lie  against  them  without  any  regard  of  the 
precept  or  process,  and  therefore  the  said  rule  cited  by  the 
other  side —  Qui  jussu  judicis  aliquod  fecerit  (but  when  he 
has  no  jurisdiction,  non  est  judex}  non  videtur  dolo  malo 
fecisse^  quia  parere  necesse  est  —  was  well  allowed ;  but  it  is 
not  of  necessity  to  obey  him  who  is  not  judge  of  the  cause, 
no  more  than  it  is  a  mere  stranger,  for  the  rule  is.  Judicium 
a  non  suo  judice  datum  nullius  est  momenti.  And  that  fully 
appears  in  our  books;  and,  therefore,  in  the  case  betwixt 
Bowser  and  Collins,  in  22  E.  IV.,  33  b,  there  Pigot  says,  '  If 
the  court  has  not  power  and  authority,  then  their  proceed- 
ings are  coram  non  judice,'  as  if  the  Court  of  Common  Pleas 
holds  plea  in  an  appeal  of  death,  robbery,  or  any  other  ap- 
peal, and  the  defendant  is  attainted,  it  is  coram  non  judice, 
quod  omnes  eoncesserunty  * 

In  re  Sawyer  ^  the  rule  was  applied  to  a  decree  of  the  Cir- 
cuit Court  of  the  United  States  for  the  District  of  Nebraska. 
The  authority  of  courts  of  equity  does  not  extend  to  issuing 
an  injunction  to  stay  criminal  proceedings,  or  the  removal  of 
municipal  or  other  public  officers;  and  the  federal  courts 

Wallace,  457;  In  re  Sawyer,  124  U.  S.  202;  GiUiland  v.  Sellers,  2  Ohio 
(N.  8.),  223. 

1  Morse  v.  Presby,  5  Foster,  303;  The  State  v.  Richard,  6  Id.  240; 
Gaston  v.  Badger,  33  N.  H.  228,  237. 

2  Moore  r.  Houston,  3  S.  &  R.  169,  190;  Williamson's  Case,  2  Casey, 
9,  18. 

8  10  Coke,  68,  76. 

*  1  Smith's  Lead.  Cas.  (8  Am.  ed.)  1110. 

6  124  U.  S.  200. 


JURISDICTION  NULLITIES.  1039 

have  been  forbidden  by  Congress  to  enjoin  proceedings  in 
the  State  tribunals,  except  in  bankruptcy.  It  followed  that 
the  commitment  of  the  defendant  for  a  contempt  in  refusing 
to  obey  an  injunction  issued  on  such  grounds  was  not  merely 
erroneous,  but  void,  and  he  was  entitled  to  be  discharged  on 
a  habeas  corpus.^ 

1  "  As  this  court  has  often  said  :  *  Where  a  court  has  jurisdiction,  it 
has  a  right  to  decide  every  question  which  occurs  in  the  cause;  and 
whether  its  decision  be  correct  or  otherwise,  its  judgment,  until  reversed, 
is  regarded  as  binding  in  every  other  court.  But  if  it  act  without  au- 
thority, its  judgments  and  orders  are  regarded  as  nullities.  They  are 
not  voidable,  but  simply  void.'  Elliott  v.  Piersol,  1  Peters,  328,  340; 
Wilcox  V.  Jackson,  13  Id.  498,  511;  Hickey  v.  Stewart,  3  Howard,  750, 
762;  Thompson  v.  Whitman,  18  Wallace,  457,  467.  We  do  not  rest  our 
conclusion  in  this  case  in  any  degree  upon  the  ground  suggested  in  argu- 
ment, that  the  bill  does  not  show  a  matter  in  controversy  of  sufficient 
pecuniary  value  to  support  the  jurisdiction  of  the  Circuit  Court,  because 
an  apparent  defect  of  its  jurisdiction  in  this  respect,  as  in  that  of  citizen- 
ship of  parties,  depending  upon  an  inquiry  into  facts  which  might  or 
might  not  support  the  jurisdiction,  can  be  availed  of  only  by  appeal  or  writ 
of  error,  and  does  not  render  its  judgment  or  decree  a  nullity.  Prigg  v. 
Adams,  2  Salk.  674;  s.  c.  Carthew,  274;  Fisher  v.  Bassett,  9  Leigh,  119, 
131-133;  Des  Moines  Navigation  Co.  v.  Iowa  Homestead  Co.,  123  U,  S. 
552.  Neither  do  we  say  that,  in  a  case  belonging  to  a  class  or  subject 
which  is  within  the  jurisdiction  both  of  courts  of  equity  and  of  courts  of 
law,  a  mistake  of  a  court  of  equity,  in  deciding  that  in  the  particular 
matter  before  it  there  could  be  no  full,  adequate,  and  complete  remedy 
at  law,  will  render  its  decree  absolutely  void.  But  the  ground  of  our 
conclusion  is,  that  whether  the  proceedings  of  the  city  council  of  Lincoln 
for  the  removal  of  the  police  judge,  upon  charges  of  misappropriating 
moneys  belonging  to  the  city,  are  to  be  regarded  as  in  their  nature  crim- 
inal, or  civil,  judicial,  or  merely  administrative,  they  relate  to  a  subject 
which  the  Circuit  Court  of  the  United  States,  sitting  in  equity,  has  no 
jurisdiction  or  power  over,  and  can  neither  try  and  determine  for  itself, 
nor  restrain  by  injunction  the  tribunals  and  officers  of  the  State  and  city 
from  trying  and  determining. 

"  The  case  cannot  be  distinguished  in  principle  from  that  of  a  judg- 
ment of  the  Common  Bench  in  England  in  a  criminal  prosecution,  which 
was  coram  non  judlce :  or  the  case  of  a  sentence  passed  by  the  Circuit 
Court  of  the  United  States  upon  a  charge  of  an  infamous  crime,  without 
a  presentment  or  indictment  by  a  grand  jury.  Case  of  the  Marshalsea, 
10  Rep.  68,  76;  Ex  parte  Wilson,  114  U.  S.  417;  Ex  parte  Bain,  121 
Id.  1.     The  Circuit  Court  being  without  jurisdiction  to  entertain  the  bill 


1040  DISCHAEGE  ON  HABEAS  CORPUS. 

in  equity  for  an  injunction,  all  its  proceedings  in  the  exercise  of  the  juris- 
diction which  it  assumed  are  null  and  void.  The  restraining  order,  in 
the  nature  of  an  injunction,  it  had  no  power  to  make.  The  adjudication 
that  the  defendants  were  guilty  of  a  contempt  in  disregarding  that  order 
is  equally  void ;  their  detention  by  the  marshal  under  that  adjudication 
is  without  authority  of  law,  and  they  are  entitled  to  be  discharged." 
Ex  parte  Rowland,  104  U.  S.  604;  Ex  parte  Fisk,  113  Id.  713;  In  re 
Ayers,  123  Id.  443,  507;  In  re  Sawyer,  124  Id.  200,  222. 


LECTURE  XLVIII. 

Suits  against  a  State.  —  Appellate  Jurisdiction  of  the  Supreme  Court  of 
the  United  States.  —  A  Writ  of  Error  to  a  State  court  is  not  a  suit 
against  the  State,  even  when  she  is  the  plaintifE  below  and  defendant 
in  error.  —  Cases  arising  under  the  Constitution  and  Laws  of  the 
United  States  are  within  the  Grant  of  Judicial  Power,  although  the 
fund  or  property  in  dispute  is  held  for  or  claimed  by  a  State,  unless  Re- 
dress cannot  be  given  without  proceeding  to  Judgment  and  Execution 
against  the  State.  —  Pennsylvania  and  Virginia  Resolutions,  as  to  the 
Organization  and  Powers  of  the  Supreme  Court  of  the  United  States. 

As  the  Constitution  originally  stood,  suits  against  a  State 
were,  equally  with  those  in  which  the  State  was  a  plaintiff, 
within  the  meaning  of  the  Constitution.  The  point  arose, 
and  was  decided  at  a  comparatively  early  period,  in  Chisholm 
V,  The  State  of  Georgia.^  This  judgment  was  viewed  with 
jealousy,  as  sanctioning  a  means  by  which  a  State  might  be 
burdened  with  debts  without  the  consent  of  her  citizens. 
By  the  Eleventh  Amendment,  passed  not  long  afterward,  it 
was  provided  that  the  judicial  power  of  the  United  States 
"shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  State."  This  prohibition,  however,  applies 
only  where  the  State  is  a  party  of  record,  or  so  directly  in- 
terested in  the  result  that  the  suit  cannot  justly  be  decided 
without  making  her  a  party ,2  and  does  not  include  suits 
brought  against  an  individual  for  money  or  assets  of  any 
other  description,  in  his  hands  or  received  by  him  under 

1  2  Dallas,  419. 

2  Cunningham  v.  The  Macon  &  Brunswick  R.  R.  Co.,  109  U.  S. 
446. 


1042  ELEVENTH  AMENDMENT. 

sncli  circumstances  as  to  make  him  a  debtor  to  the  plaintiff, 
although  the  fund  in  controversy  is  claimed  by  the  State,  and 
results  from  the  execution  of  a  law  which  she  has  enacted  ;^ 
nor  is  it  applicable  to  an  appeal  or  writ  of  error  from  a  judg- 
ment rendered  in  favor  of  a  State  tribunal.^  For  like  reasons 
a  suit  in  the  courts  of  the  United  States  against  a  bank,  or 
other  corporation  created  by  a  State,  is  not  a  suit  against  the 
State  in  the  sense  of  the  Eleventh  Amendment,  even  when 
the  State  is  a  stockholder,  and  the  assets  are  exclusively 
hers.  So  an  action  may  well  be  maintained  in  a  federal  court 
against  a  municipal  or  other  agency  created  by  a  State  for 
the  local  government  of  a  town  or  district. 

The  Constitution  confers  jurisdiction  in  all  cases  arising 
under  the  laws  and  Constitution  of  the  United  States  ;  which, 
taken  literally,  would  authorize  a  suit  against  a  State  wher- 
ever such  a  question  is  involved.  What  the  Eleventh  Amend- 
ment provides  is  that  a  State  shall  not  be  sued  by  the 
"  citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State."  Whether  the  federal  courts  could  take  cog- 
nizance of  controversies  between  a  State  and  her  citizens, 
involving  a  clause  of  the  Constitution  or  an  act  of  Con- 
gress, remained  an  open  question;^  and  it  was  also  con- 
tended that  where  judgment  was  rendered  for  a  State  in 
a  suit  instituted  by  her  against  a  citizen,  and  the  latter 
brought  the  cause  by  a  writ  of  error  before  the  Supreme  Court 
of  the  United  States,  he  became  plaintiff  and  the  State  de- 
fendant, and  the  case  fell  under  the  Eleventh  Amendment. 

The  controversy  was  complicated  by  a  pretension  which 
struck  at  the  root  of  the  appellate  jurisdiction  of  the  United 
States.  Had  it  succeeded,  a  forensic  anarchy  would  have 
ensued;  the  Supreme  Court  would  have  been  disabled  in  the 
performance  of  its  functions ;  and  the  State  courts,  left  to 

1  Osborn  v.  Bank  of  the  United  States,  9  Wheaton,  738. 

2  Martin  v.  Hunter's  Lessee,  1  Wheaton,  304;  Cohen  v.  Virginia,  6  Id. 
264;  Strauder  v.  West  Virginia,  100  U.  S.  303;  Virginia  v.  Rives,  Id. 
313;  Poindexter  v.  Greenhow,  114  Id.  270. 

8  See  the  arguments  of  counsel  in  Osborn  v.  Bank  of  the  United 
States,  9  Wheaton,  738,  762,  798 ;  Marye  v.  Parsons,  114  U.  S.  325,  337. 


SUITS  AGAINST  STATES.  1043 

themselves  and  having  no  common  head,  must  have  clashed 
with  each  other  and  with  the  judgments  of  the  federal  tri- 
bunals. The  grant  of  appellate  power  does  not  prescribe  the 
manner  of  its  exercise,  nor  whether  it  shall  be  universal  or 
confined  to  the  judgments  of  the  subordinate  courts  of  the 
United  States ;  and  it  was  argued  that  there  could  be  no  im- 
plied right  on  the  part  of  the  tribunals  of  one  government  to 
reconsider  the  judgments  rendered  by  the  judges  of  another, 
which  was  also  sovereign  and,  in  many  respects,  co-ordinate. 
There  was  no  express  authority  for  such  an  assumption  of 
power  by  the  Supreme  Court  of  the  United  States,  and  it 
must  consequently  be  regarded  as  a  usurpation. 

The  question  arose  in  Martin  v.  Hunter,^  out  of  a  peremp- 
tory refusal  by  the  Virginia  court  of  last  resort  to  recognize 
the  authority  of  the  Supreme  Court  of  the  United  States  as 
an  appellate  tribunal,  in  language  which  reflected  the  tone 
of  the  Kentucky  Resolutions  of  1797,  and  was  a  natural  out- 
growth of  their  principles.     It  was  as  follows  :  — 

"The  court  is  unanimously  of  opinion  that  the  appellate  power 
of  the  Supreme  Court  of  the  United  States  does  not  extend  to  this 
court  under  a  sound  construction  of  the  Constitution  of  the  United 
States  ;  that  so  much  of  the  twent^'-fifth  section  of  the  act  of  Con- 
gress to  establish  the  judicial  courts  of  the  United  States  as  ex- 
tends the  appellate  jurisdiction  of  the  Supreme  Court  to  this  court 
is  not  in  pursuance  of  the  Constitution  of  the  United  States  ;  that 
the  writ  of  error  in  this  cause  was  improvidentlj^  allowed  under 
the  authorit}^  of  that  act;  that  the  proceedings  thereon  in  the 
Supreme  Court  were  coram  non  judice  in  relation  to  this  court, 
and  that  obedience  to  its  mandate  be  declined  by  the  court." 

The  jurisdiction  of  the  Supreme  Court  of  the  United  States 
was  vindicated  by  Story,  J.,  in  an  opinion  remarkable  for 
its  breadth  and  moderation,  and  to  this  effect :  — 

On  turning  to  the  Constitution  it  would  be  seen  that  judicial 
power  was  given  generall}'  and  without  restriction  in  all  cases  in 
law  or  equity   under   the  Constitution,   the  laws   of  the  United 

1  1  Wheaton,  304. 


1044  APPELLATE  JURISDICTION  OF  THE 

States,  and  treaties  made  or  to  be  made  under  their  authority. 
And  the  Constitution  also  declared  that  in  all  cases  affecting  am- 
bassadors, or  other  public  ministers,  and  consuls,  and  those  in 
which  a  State  was  a  part}',  the  Supreme  Court  should  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned  the  Supreme 
Court  was  to  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
—  with  such  exceptions  and  under  such  regulations  as  should  be 
made  by  Congress.  This  language  was  imperative,  and  could  only 
be  construed  as  an  absolute  grant  of  judicial  power  over  all  the  sub- 
jects enumerated  in  the  Constitution.  The  mode  in  which  that  power 
should  be  exercised  might  be  determined  by  Congress.  It  might, 
subject  to  the  restrictions  imposed  by  the  Constitution,  be  made 
original  or  appellate ;  but  in  one  form  or  other  it  was  the  dut}'  of 
Congress  legislatively  to  confer  jurisdiction  on  the  federal  tribunals. 
It  had  been  contended  in  argument  that  the  meaning  of  the  Con- 
stitution might  be  satisfied  by  giving  the  court  an  appellate  juris- 
diction over  cases  arising  in  the  inferior  courts  of  the  United  States. 
But  this  was  not  the  language  of  the  Constitution.  The  words 
were,  "  all  cases  arising  under  the  Constitution,  the  laws,  and  the 
treaties  of  the  United  States  ;  "  and  they  obviously  included  cases 
so  arising  in  the  State  courts  as  well  as  those  brought  in  the  courts 
of  the  United  States.  If,  for  instance,  a  contract  for  the  paj^ment 
of  money  was  made  between  citizens  of  the  same  State  and  a  suit 
brought  upon  it  in  the  courts  of  the  State,  the  court  would  have  ex- 
clusive jurisdiction  in  the  first  instance  of  the  suit.  The  defendant 
might,  however,  rely  at  the  trial  on  a  State  law  making  paper 
money  a  legal  tender,  or  impairing  the  obligation  of  a  contract  on 
which  the  suit  was  brought.  Such  a  law  would  obviously  be  con- 
trary to  the  Constitution  of  the  United  States.  Still,  this  would 
not  of  itself,  nor  unless  provision  were  made  by  Congress  for  the 
immediate  removal  of  the  suit,  put  an  end  to  the  jurisdiction  of  the 
court.  It  would  still  be  its  duty  to  consider  and  determine  the 
validity  of  the  defence.  A  case  would  consequently  arise  under 
these  circumstances  which  was  at  once  within  the  jurisdiction 
of  the  State  court,  and  under  the  Constitution  of  the  United 
States.  Could  it  be  doubted  that  the  appellate  power  of  the 
Supreme  Court  extended  to  such  a  case  ?  If  it  did  not  an  excep- 
tion would  be  created  contrary  to  the  terms  of  the  grant,  which 
were  absolute,  ana  the  meaning  of  the  Constitution,  which  was 
that  the  Supreme  Court  should  correct  everj^  judicial  violation  of 


SUPREME  COURT  OF  THE   UNITED  STATES.  1045 

the  Constitution.  It  was  not  denied  that  when  a  case  arose  in  a 
State  court  involving  the  Constitution,  the  laws,  or  the  treaties  of 
the  United  States,  it  might  be  removed  to  the  courts  of  the  United 
States  if  a  provision  was  made  to  that  effect  by  Congress.  A 
power  to  remove  a  case  before  judgment  necessaril}'  implied  a  right 
to  remove  it  afterwards.  In  either  case  the  jurisdiction  must  be 
exercised  by  a  writ  directed  to  the  court  in  which  the  suit  origi- 
nated, commanding  it  to  stay  proceedings  and  submit  the  cause  to 
the  consideration  of  another  tribunal.  Of  the  two  methods  it  might 
seem  more  consistent  with  the  due  administration  of  justice  to  wait 
until  the  State  court  had  decided,  and  then  reconsider  their  deter- 
mination if  contrarj^  to  the  Constitution  or  laws  of  the  United 
States,  and  this  method  had  been  adopted  by  Congress.  It  fol- 
lowed that  *'  the  judgment  of  the  Court  of  Appeals  of  Virginia  on 
the  mandate  of  this  court  must  be  reversed,  and  the  judgment  of 
the  District  Court  of  Virginia  held  at  Winchester  be  and  the  same 
is  hereby  affirmed." 

Whether  the  Virginia  court  was  convinced  by  Story's  able 
argument  cannot  be  known  with  certainty,  because  judgment 
was  entered  in  the  court  above  under  the  twenty-fifth  sec- 
tion of  the  Judiciary  Act  of  1879,  providing  that  when  the  H'^i 
cause  had  been  remanded,  and  was  again  heard  on  an  appeal 
or  writ  of  error,  the  Supreme  Court  might  enter  a  final  judg- 
ment and  award  execution.  This  law  was  revised  in  1867, 
and  the  Supreme  Court  may  now  proceed  forthwith  to  ex- 
ecution without  sending  the  record  down  to  the  court  below 
and  requiring  it  to  enforce  the  decree. 

Here  the  controversy  might  have  ended ;  but  it  was  re- 
newed in  Cohen  v.  Virginia,^  under  circumstances  covering 
the  entire  field,  including  the  right  to  issue  a  writ  of  error  at 
the  instance  of  the  defendant  in  a  cause  where  the  State  is 
plaintiff,  and  the  proceeding  may  consequently  be  regarded 
as  against  her  in  the  sense  of  the  Eleventh  Amendment. 

In  Cohen  v.  Virginia ^  the  validity  of  a  fine  imposed  on  the 
plaintiff  in  error,  for  vending  lottery-tickets  under  an  author- 
ity claimed  under  a  license  from  the  United  States,  but  con- 
trary to   the  laws  of  Virginia,  came  on  appeal  before  the 
1  6  Wheaton,  254.  a  6  Wheaton,  254. 


1046  JURISDICTION   WHERE  A   STATE 

Supreme  Court  of  the  United  States.  It  was  contended  on 
behalf  of  the  Commonwealth  of  Virginia,  which  was  the  de- 
fendant in  error,  that  in  construing  the  grant  of  judicial 
power  in  all  cases  arising  under  the  Constitution  and  laws  of 
the  United  States,  cases  must  be  distinguished  from  ques- 
tions. The  cases  contemplated  by  the  Constitution  were 
cases  arising  so  directly  under  the  Constitution  and  laws  of 
the  Union  that  they  might  be  brought  in  the  first  instance  in 
the  federal  tribunals.  The  mere  fact  that  a  question  involv- 
ing the  Constitution  might  or  did  arise  in  a  suit  brought  in  a 
State  court  would  not  render  the  suit  a  case  under  the  Con- 
stitution or  laws  of  the  United  States.  It  was  a  familiar 
principle  that  to  authorize  the  hearing  and  determination  of 
any  cause  the  parties  as  well  as  the  subject-matter  must  be 
within  the  jurisdiction  of  the  court.  The  Eleventh  Amend- 
ment to  the  Constitution  declared  that  the  judicial  power  of 
the  United  States  "  shall  not  extend  "  to  a  suit  against  a  State 
by  the  citizens  of  another  State,  or  the  citizens  or  subjects  of 
a  foreign  nation  ;  and  it  was  an  inevitable  inference  that  a 
State  could  not  be  sued  in  the  federal  courts  by  her  own 
citizens.  In  the  case  under  consideration  one  of  the  parties 
was  the  State  of  Virginia,  the  other  a  citizen  of  that  State  ; 
and  the  mere  circumstance  that  a  law  of  Congress  was  in- 
volved did  not  give  the  Supreme  Court  jurisdiction,  or  author- 
ize it  to  cite  the  State  of  Virginia  to  appear  and  show  cause 
why  the  judgment  which  had  been  rendered  by  her  tribunals 
should  not  be  reversed. 

The  judgment  was  delivered  by  Chief- Justice  Marshall, 
and  substantially  as  follows  :  — 

Three  points  had  been  made  in  support  of  the  motion  to  dismiss 
the  writ  for  want  of  jurisdiction  :  first,  that  the  defendant  in  error 
was  a  State  ;  secondly,  that  no  writ  of  error  lay  from  the  Supreme 
Court  to  a  State  court ;  and  finally,  that  the  court  had  no  jurisdic- 
tion of  the  cause  by  virtue  of  the  Constitution  or  the  Judiciary  Act 
of  1789.  The  propositions  advanced  by  the  defendant  in  error 
under  these  heads  were  of  great  magnitude  and  might  be  said  vitally 
to  affect  the  Union.     They  excluded  the  inquiry  whether  the  Con- 


IS   THE  DEPENDANT  IN  ERROR. 


1047 


stitution  and  laws  of  the  United  States  had  been  violated,  and 
maintained  that  if  such  a  violation  had  occurred  it  was  not  in  the 
power  of  the  Government  to  apply  a  corrective.  They  maintained 
that  the  nation  did  not  possess  a  department  capable  of  restraining 
peaceabl}^  by  authority  of  law  the  attempts  which  might  be  made 
by  a  part  against  the  authority  of  the  whole,  and  was  reduced  to 
the  alternative  of  enduring  such  encroachments  or  resisting  them 
with  arms.  They  maintained  that  the  Constitution  of  the  United 
States  had  provided  no  tribunal  for  the  final  construction  of  the 
Constitution,  the  laws,  or  the  treaties  of  the  nation,  but  that  this 
power  might  be  exercised  in  the  last  resort  by  the  courts  of  every 
State  in  the  Union  ;  that  the  Constitution,  laws,  and  treaties  might 
receive  as  many  constructions  as  there  were  States ;  and  that  this 
was  not  a  mischief,  or  if  a  mischief,  was  irremediable.  If  such  was 
the  Constitution  it  was  the  duty  of  the  court  to  defer  respectfully 
to  its  provisions.  If  such  was  not  the  Constitution,  it  was  equally 
the  duty  of  the  court  to  sa}'  so,  and  to  perform  the  task  assigned 
to  it  b3'  the  people. 

The  first  question  to  be  considered  was  whether  the  jurisdiction 
of  the  court  was  excluded  by  the  character  of  the  parties,  —  one 
being  a  State,  and  the  other  a  citizen  of  that  State.  By  the  Third 
Article  of  the  Constitution,  section  second,  jurisdiction  was  given  to 
the  courts  of  the  Union  in  two  classes  of  cases.  In  the  first,  juris- 
diction dep*^nded  on  the  character  of  the  cause,  whoever  might  be 
the  parties.  This  class  comprehended  "  all  cases  in  law  or  equity 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made  or  which  shall  be  made  under  their  authorit}'."  The 
clause  extended  the  jurisdiction  of  the  court  to  all  the  cases  de- 
scribed, without  making  any  exception,  and  without  an}- regard  to  the 
condition  of  the  part}'.  If  any  exception  existed  it  must  arise  bj^ 
implication,  against  the  express  words  of  the  clause.  In  the  sec- 
ond class  the  jurisdiction  depended  altogether  on  the  character  of 
the  parties.  In  it  were  comprehended  controversies  between  two 
or  more  States,  between  a  State  and  citizens  of  another  State,  and 
between  a  State  and  a  foreign  State,  its  citizens  or  subjects.  If 
such  were  the  parties,  it  was  entirely  unimportant  what  might  be 
the  subject  of  controvers}'.  Be  it  what  might,  such  parties  had  a 
Constitutional  right  to  come  into  the  courts  of  the  Union. 

The  jurisdiction  of  the  court  being  thus  extended  b}^  the  letter  of 
the  Constitution  tp  all  cases  arising  under  it  or  under  the  laws  of 


1048  JURISDICTION   OF  THE   SUPREME   COURT 

the  United  States,  they  who  would  withdraw  any  case  of  this 
description  from  that  jurisdiction  must  base  the  exemption  on 
the  spirit  and  true  meaning  of  the  Constitution ;  which  spirit  and 
true  meaning  must  be  so  apparent  as  to  overrule  the  words  of 
the  instrument.  The  counsel  for  the  defendant  in  error  had  un- 
dertaken to  do  this  on  two  grounds :  first,  that  a  sovereign  in- 
dependent State  was  not  suable  except  by  its  own  consent ;  and 
next,  that  the  courts  of  the  United  States  could  not,  b}'  the  true 
construction  of  the  Constitution  and  the  Judiciary  Act,  exercise  an 
appellate  jurisdiction  over  the  courts  of  a  State.  The  general 
proposition  that  consent  was  necessary  to  jurisdiction  over  a  State 
would  not  be  controverted ;  but  its  consent  need  not  be  given  in 
each  particular  case,  —  it  might  be  granted  generally,  once  for  all. 
If  a  State  surrendered  any  portion  of  its  sovereignty  the  question 
whether  a  liabilit}^  to  suit  was  a  part  of  that  portion  depended  upon 
the  instrument  by  which  the  surrender  was  made.  If,  upon  a  just 
construction,  it  appeared  that  the  State  had  submitted  to  be  sued, 
then  the  sovereign  right  of  deciding  in  ever}'  case  upon  the  justice 
of  its  own  cause  was  no  longer  in  the  State,  and  might  be  exercised 
by  the  tribunal  before  which  the  suit  was  to  be  brought. 

It  had  been  said  that  cases  in  which  a  State  might  be  made 
a  party  were  enumerated  in  the  Constitution,  and  did  not  in- 
clude a  suit  brought  by  a  State  against  her  own  citizens,  or  by  a 
citizen  of  the  State  against  the  State ;  and  that  it  w&s  expressly 
declared  by  the  Eleventh  Amendment  that  the  Constitution  should 
not  be  so  construed  as  to  authorize  a  suit  by  an  individual  against 
a  State.  This  argument  might  be  conclusive  if  the  object  was  to 
prove  that  the  character  of  the  parties  in  the  case  under  consider- 
ation was  not  such  as  to  confer  jurisdiction.  It  went  no  part  of 
the  way  towards  establishing  that  the  character  of  the  parties  was 
such  as  to  defeat  the  jurisdiction  which  the  court  possessed  under 
the  general  authority  to  take  cognizance  of  all  cases  arising  in  law 
or  equit}'  under  the  Constitution.  It  was  not  necessarj^  to  inquire 
whether  a  citizen  could  by  virtue  of  this  grant  proceed  against  his 
State.  The  case  before  the  court  was  a  prosecution  instituted  hj  a 
State  for  an  act  done  by  one  of  her  citizens  under  an  authority  derived 
from  the  United  States.  The  case  was  not  varied  by  the  Eleventh 
Amendment,  which  was  confined  to  instances  where  a  demand 
against  a  State  was  made  by  an  individual  in  the  courts  of  the 
Union.     It  spoke  of  suits  at  law  or  in  equity-  prosecuted  against  a 


OVER   STATE  TRIBUNALS. 


1049 


State  b}^  a  citizen  of  another  State  or  of  a  foreign  nation.  No  such 
suit  could  be  brought  or  maintained  consistently  with  the  Amend- 
ment ;  but  a  suit  b}'  a  State  against  a  citizen  was  obviously  not  within 
the  words  or  spirit  of  this  provision  when  first  instituted,  and  would 
not  come  within  it  because  a  writ  of  error  was  subsequently  sued 
out  in  which  the  original  plaintiff  appeared  as  defendant  and  the 
original  defendant  as  plaintiff.  Notwithstanding  the  seeming  change, 
the  cause  and  the  actors  would  still  be  the  same,  and  the  writ  of 
error  a  means  of  rendering  the  defence  efiectual.  Besides,  a  writ  of 
error  was  not  directed  to  the  parties,  but  to  the  court ;  it  was  not, 
even  when  a  State  was  a  part}^  a  demand  against  the  State.  The 
motive  for  issuing  it  was  merel}'  to  remove  the  cause  from  the  court 
and  bring  it  for  consideration  before  another  tribunal.  It  was  said 
that  every  such  writ  contained  a  citation  which  made  the  State  a  party 
defendant.  But  what  was  the  citation?  It  was  simph'  a  notice  to 
the  part}'  who  had  obtained  judgment  in  the  court  below  that  the 
record  was  transferred  into  another  court,  where  he  might  appear 
or  decline  to  appear  according  to  his  judgment  or  inclination.  It 
was  not  therefore  a  suit,  nor  had  it  the  effect  of  process.  This 
would  be  seen  on  reference  to  the  practice  in  suits  instituted  by 
the  United  States.  It  was  well  established  that  no  suit  could  be 
commenced  or  prosecuted  against  the  United  States.  Yet  writs  of 
error  accompanied  with  citations  had  uniformly  issued  for  the 
removal  of  judgments  in  favor  of  the  United  States  into  a  superior 
court  where  they  might,  like  those  in  favor  of  an  individual,  be 
re-examined  and  affirmed  or  reversed. 

It  was  therefore  the  opinion  of  the  court  that  a  defendant  who 
removed  a  judgment  rendered  against  him  in  favor  of  a  State  into 
the  Supreme  Court  for  the  purpose  of  re-examining  the  question 
whether  the  judgment  was  in  violation  of  the  Constitution  and  laws 
of  the  United  States  did  not  commence  or  prosecute  a  suit  against 
the  State.  But  if  the  court  was  mistaken  in  this  opinion  the  error 
would  not  affect  the  case  actually  before  them.  For  if  the  writ  of 
error  was  a  suit  in  the  sense  of  the  Eleventh  Amendment,  it  was  a 
suit  commenced  and  prosecuted  b}-  a  citizen  of  the  State  and  not 
by  a  citizen  of  another  State  or  of  a  foreign  nation.  It  was  not 
therefore  within  the  Amendment,  but  was  governed  by  the  Consti- 
tution as  originally  framed,  which  gave  judicial  power  in  all  cases 
arising  under  the  Constitution  and  laws  of  the  United  States  with- 
out respect  to  parties. 


1050  JURISDICTION  OF  THE  SUPREME  COURT 

The  second  objection  to  the  jurisdiction  of  the  court  was  that  its 
appellate  power  could  not  be  exercised  in  any  case  over  the  judg- 
ment of  a  State  court.  This  objection  was  sustained  chiefly  by 
arguments  drawn  from  the  supposed  total  separation  of  the  judiciary 
of  the  States  from  that  of  the  Union.  It  was  said  that  the  federal 
judiciary  was  completely  foreign  to  that  of  a  State,  and  that  there 
was  no  other  or  greater  connection  between  them  than  between  the 
courts  of  two  independent  nations.  This  hypothesis  was  not  founded 
on  the  words  of  the  Constitution,  —  which  conferred  appellate  juris- 
diction on  the  Supreme  Court  in  general  terms,  —  but  on  the  as- 
sumption that  the  application  of  this  jurisdiction  to  the  judgments 
of  the  State  courts  would  be  so  repugnant  to  reason  and  incompat- 
ible with  principle  as  to  show  that  the  right  of  appeal  should  be 
confined  to  cases  arising  in  the  inferior  courts  of  the  United  States. 
Did  such  an  unreasonableness,  such  an  incompatibility  exist?  The 
contrary  was  apparent.  That  the  United  States  formed  for  man}' 
and  for  some  most  important  purposes  a  single  nation  could  not  be 
denied.  In  war  they  were  one  people.  In  making  peace  they  were 
one  people.  In  all  commercial  regulations  they  were  one  and  the 
same  people.  In  many  other  respects  the  American  people  were 
one ;  and  the  onl}'  government  which  was  capable  of  controlling 
and  managing  their  interests  in  all  these  respects  was  the  Govern- 
ment of  the  Union.  It  was  their  government ;  and  in  that  charac- 
ter they  had  no  other.  America  had  chosen  to  be  in  man}-  respects 
and  to  many  purposes  a  nation  ;  and  for  all  these  purposes  her 
government  was  complete,  to  all  these  objects  it  was  competent. 
The  people  had  declared  that  in  all  powers  given  for  these  objects 
it  was  supreme.  It  could  therefore  for  these  ends  legitimately  con- 
trol all  individuals  and  governments  within  the  American  teiTitor3\ 
The  Constitution  and  laws  of  a  State,  so  far  as  the}'  were  repug- 
nant to  the  Constitution  and  laws  of  the  United  States,  were 
absolutely  void.  The  States  were  constituent  parts  of  the  United 
States.  They  were  members  of  one  great  empire,  and  if  sovereign 
for  some  purposes  were  subordinate  for  others. 

Was  it  unreasonable  that  in  a  government  so  constituted  the 
judicial  department  should  be  competent  to  give  efficacy  to  the 
constitutional  authorit}^  of  the  legislature?  —  that  it  should  have 
authorit}'  to  decide  on  the  validity  of  the  Constitution  or  law  of  a 
State,  if  it  was  repugnant  to  the  Constitution  or  laws  of  the  United 
States?    Was  it  unreasonable  that  it  should  also  be  empowered  to 


OVER   STATE  TRIBUNALS. 


1051 


declare  the  judgment  of  a  State  tribunal  unconstitutional  in  en- 
forcing such  a  law  ?  Was  it  so  very  unreasonable  as  to  furnish  a 
justification  for  controlling  the  words  of  the  Constitution  ?  It  would 
be  obvious,  on  examination,  that  it  was  not;  and  that  the  incon- 
gruit}^  was,  on  the  contrary,  in  the  h3^pothesis  maintained  by  the 
defendants  in  error.  If  the  federal  and  State  courts  had  concurrent 
jurisdiction  in  all  cases  arising  under  the  Constitution,  laws,  and 
treaties  of  the  United  States,  and  if  a  case  of  this  description  could 
neither  be  removed  before  judgment  nor  revised  after  judgment, 
then  the  construction  of  the  Constitution,  laws,  and  treaties  of  the 
United  States  would  devolve  equally  on  the  judiciarj^  of  the  United 
States  and  the  State  courts,  however  they  might  be  constituted. 

It  had  been  remarked  by  a  very  able  statesman  that  thirteen 
independent  courts  (and  the  number  was  already  increased  to 
twent}')  of  final  jurisdiction  over  the  same  causes  arising  upon  the 
same  laws  would  be  a  judicial  hydra  from  which  nothing  but  con- 
fusion and  contradiction  could  proceed.  This  evil  could  not  be 
prevented,  or  the  uniform  exposition  of  the  Constitution  and  laws 
of  the  United  States  which  was  obviously  requisite  attained,  with- 
out vesting  in  some  single  tribunal  the  power  of  deciding  in  the 
last  resort  all  cases  in  which  they  were  involved.  There  was  con- 
sequently nothing  in  the  political  relations  between  the  general  and 
State  goyernments  to  warrant  a  restrictive  construction  of  the 
words  by  which  appellate  jurisdiction  was  given  to  the  Supreme 
Court  in  all  cases  arising  under  the  Constitution,  laws,  or  treaties 
of  the  United  States,  and  much  to  show  that  they  should  be  taken 
in  the  general  sense  which  was  their  natural  import.  Such  was 
the  cotemporaneous  exposition  as  given  in  the  "Federalist,"  and 
it  had  been  acted  on  in  numerous  instances  from  the  foundation 
of  the  government. 

Another  argument  used  by  the  defendants  in  error  should  perhaps 
be  noticed.  It  had  been  said  that  the  interpretation  of  the  Consti- 
tution and  laws  of  the  United  States  might  safety  be  left  to  the  leg- 
islature and  courts  of  the  States,  unless  there  was  a  disposition  so 
hostile  to  the  existing  political  system  as  to  engender  a  resolution 
to  destroy  it,  and  that  should  such  a  resolve  be  formed  it  could  not 
be  restrained  b^-  parchment  stipulations.  The  fate  of  the  Constitu- 
tion would  not  then  depend  upon  judicial  decisions.  Without  an 
appeal  to  force  the  States  could  put  an  end  to  the  government  by 
mere  inaction.  They  had  only  to  refrain  from  electing  senators, 
VOL.  II.  — 26 


1052  JURISDICTION   OF   THE   SUPREME   COURT 

and  in  an  essential  part,  on  which  all  else  depended,  it  would  be 
rendered  impotent.  It  was  no  doubt  true,  as  this  argument  al- 
leged, that  if  ever  hostility  to  the  government  of  the  United  States 
became  universal  it  would  also  be  irresistible.  The  people  made  the 
Constitution,  and  they  could  unmake  it.  It  was  the  creature  of 
their  will,  and  lived  only  by  it.  But  this  supreme  and  irresistible 
power  to  make  and  unmake  resided  only  in  the  whole  body  of  the 
people,  not  in  any  subdivision. 

The  acknowledged  inability  of  the  government  to  sustain  itself 
against  the  public  will,  and  to  control  the  whole  nation  by  force  or 
otherwise,  was  therefore  no  sound  argument  for  a  constitutional 
inabilit}'  to  protect  itself  against  a  section  of  the  nation  acting  in 
opposition  to  the  general  will. 

It  might  be  conceded  that  if  all  the  States,  or  a  majorit}^  of 
them,  refused  to  elect  senators,  the  legislative  powers  of  the  Union 
would  be  suspended ;  but  if  an}^  one  State  refused  to  elect  them, 
the  Senate  would  not  on  that  account  be  the  less  capable  of  per- 
forming all  its  functions.  The  argument  therefore  rather  went  to 
prove  the  subordination  of  the  parts  to  the  whole  than  the  com- 
plete independence  of  any  one  of  the  parts.  The  framers  of  the 
Constitution  were  indeed  unable  to  make  any  provisions  which 
should  protect  that  instrument  against  a  general  combination  of 
the  States,  or  of  the  people,  for  its  destruction ;  and  conscious  of 
their  inabilit}^  did  not  make  the  attempt.  But  they  were  able  to 
provide  against  the  operation  of  measures  adopted  in  any  one 
State,  and  tending  to  arrest  the  execution  of  the  laws  which  had 
been  enacted  by  all ;  and  thus  much  it  was  the  part  of  true  wisdom 
to  attempt.  The  language  of  the  Constitution  showed  that  the  at- 
tempt had  been  made,  and  means  devised  to  render  it  effectual. 

The  history  of  the  case  would  be  incomplete  vi^ithout 
adding  that  while  the  judicial  right  to  revise  the  decisions 
of  the  State  courts  was  firmly  vindicated,  the  court  also  held 
that  a  grant  by  Congress  to  the  mayor  and  corporation  of 
Washington  of  the  power  to  raise  money  by  a  lottery  did  not 
authorize  a  sale  of  tickets  beyond  the  limits  of  the  District 
of  Columbia,  and  within  the  boundaries  of  a  State  where 
lotteries  were  forbidden  by  law.^  The  fine  imposed  by  the 
Quarter  Sessions  on  Cohen  was  consequently  affirmed. 

1  See  post,  1143. 


OVER   STATE  TRIBUNALS.  1053 

It  results  from  the  foregoing  judgment  that  a  suit  or  prose- 
cution instituted  by  a  State  against  a  citizen  thereof,  or  a 
citizen  of  another  State,  may  be  removed  by  a  writ  of  error 
into  the  Supreme  Court,  if  any  question  arises  in  the  course 
of  the  proceedings  under  the  Constitution  or  laws  of  the 
United  States,  and  is  determined  adversely  to  the  defendant. 
Under  these  circumstances  the  State  is  still  the  actor  or 
plaintiff,  and  the  writ  of  error  merely  a  means  of  rendering 
the  defence  available. 

The  argument  of  Chief-Justice  Marshall,  in  Cohen  v,  Vir- 
ginia, that  what  had  been  done  by  all  might  be  undone  if 
all  concurred,  but  that  an  attempt  by  any  part  to  resist  the 
authority  of  the  whole  would  be  a  usurpation  which  should 
be  met  and  repelled  by  the  government,  —  which  alone 
represented  the  American  people  as  a  collective  whole,  — 
was  a  victorious  answer  to  the  contention  of  Mr.  Barbour, 
for  the  defendants,  that  a  State  could  not  be  constrained 
contrary  to  her  inclination.  The  question  which  received 
a  judicial  determination  in  this  instance  was  identical  with 
that  which  the  ordinances  of  secession  put  at  issue,  to  be 
determined  by  an  appeal  to  arms.  If  the  application  of 
the  laws  of  a  State  belonged  in  the  last  resort  to  the  State 
tribunals,  and  their  judgment  were  final,  it  would  be  binding 
on  the  citizen,  and  a  legal  justification  for  any  act  done  un- 
der the  authority  of  the  State  in  opposition  to  the  National 
Government.  If,  on  the  other  hand,  the  courts  of  the  United 
States  have  a  right  to  revise  and  correct  the  judgments  of 
the  State  courts  in  cases  involving  the  statute  or  organic  law 
of  the  Union,  there  is  a  paramount  authority  which  must  be 
obeyed,  anything  in  the  Constitution  or  laws  of  the  State  to 
the  contrary  notwithstanding.^ 

*  The  political  heresy  which  Marshall  so  ably  refuted  in  Cohen  v. 
Virginia,  reappeared  in  The  Bank  v.  Knoup,  6  Ohio,  n.  8.  342,  where 
Bartley,  Ch.-J.,  contended  that  the  State  and  the  federal  courts  stand  on 
the  same  level,  neither  having  a  right  to  supervise  the  other,  and  that 
whichever  first  obtains  jurisdiction  may  proceed  to  a  final  and  conclu- 
sive judgment.  In  his  opinion,  the  appellate  power  of  the  Supreme  Court 
of  the  United  States  was  limited  to  appeals  from  the  subordinate  federal 


1054  ORGANIZATION   OF   THE   SUPREME  COURT. 

courts,  and  could  not  be  exercised  over  the  State  tribunals.  This  opinion 
was  overruled  by  the  majority  of  the  judges,  who  held  that  the  authority 
of  the  national  judiciary  is  paramount. 

The  stand  taken  by  the  Virginia  Court  of  Appeals  in  Martin  v.  Hun- 
ter is  the  more  singular,  because  Virginia  had  recently  vindicated  the 
true  method  of  the  Constitution  against  an  innovation  attempted  by 
Pennsylvania.  In  the  year  1809  the  legislature  of  the  latter  State  pro- 
posed an  amendment  to  the  Constitution  of  the  United  States,  providing 
for  the  appointment  of  an  impartial  tribunal  to  decide  between  the  State 
and  the  federal  judiciary,  which  was  transmitted  by  the  Governor  to  the 
legislature  of  Virginia.  The  latter  body  referred  the  subject  to  a  com 
mittee,  which,  on  the  18th  of  January,  1810,  reported  as  follows:  — 

"  That  they  had  taken  the  subject  into  consideration,  and  were  of 
opinion  that  a  tribunal  was  already  provided  by  the  Constitution  —  to 
wit,  the  Supreme  Court  —  more  eminently  qualified  from  their  habits  and 
duties,  from  the  mode  of  their  selection,  and  from  the  tenure  of  their 
offices,  to  decide  disputes  in  an  enlightened  and  impartial  manner  than 
any  other  tribunal  which  could  be  created.  The  members  of  that  court 
were  selected  from  the  citizens  of  the  United  States  who  were  most  cele- 
brated for  their  virtue  and  legal  learning,  not  at  the  will  of  a  single  indi- 
vidual, but  by  the  concurrent  choice  of  the  President  and  Senate.  They 
would,  therefore,  presumably  be  free  from  local  prejudices  and  partial- 
ities. The  proposed  amendment  seemed  to  be  founded  upon  the  idea 
that  the  federal  judiciary  would,  from  a  lust  of  power,  enlarge  their  juris- 
diction to  the  annihilation  of  the  jurisdiction  of  the  State  courts;  that 
they  would  substitute  their  will  for  the  law  or  the  Constitution.  Such  a 
danger  was  not  to  be  anticipated  from  any  court;  but  if  there  were  suffi- 
cient grounds  for  the  apprehension,  what  security  could  be  given  for  the 
course  of  the  new  tribunal  proposed  by  the  State  of  Pennsylvania? 

'*  Such  a  court  would,  so  far  as  any  idea  of  it  could  be  drawn  from  the 
description  given  in  the  resolution  transmitted  by  the  legislature  of  that 
State,  tend  rather  to  invite  than  avert  a  collision  between  the  federal  and 
State  courts.  It  might  also  become,  in  process  of  time,  a  serious  and  dan- 
gerous embarrassment  to  the  operations  of  the  General  Government." 

The  report  was  unanimously  adopted,  and  resolutions  passed  in  ac- 
cordance with  it  transmitted  "  to  each  of  the  senators  and  representatives 
of  Virginia  in  the  Congress,  and  to  the  executives  of  the  several  States 
in  the  Union,  with  a  request  that  the  same  should  be  laid  before  the 
legislatures  thereof."     See  Webster's  Works,  vol.  iii.  p.  352. 


LECTURE  XLIX. 

The  States  exempt  from  Suit  wherever  they  have  not  irrevocably  waived 
the  Privilege.  —  Object  and  Effect  of  the  Eleventh  Amendment.  —  A 
Recovery  may  be  had  in  Damages  or  specifically  against  the  Officers  or 
Agents  of  a  State  for  things  wrongfully  Taken  by  them  on  her  behalf, 
although  she  is  Interested,  and  cannot  be  Served  with  Process,  —  A 
State  Treasurer  will  not  be  decreed  to  refund  Money  which  has  been 
illegally  Extorted  and  paid  into  the  Treasury,  although  he  may  be  made 
personally  Answerable  in  Damages.  —  A  plain  ministerial  Duty  may  be 
Enforced  by  a  mandamus.  —  A  mandamus  will  not  be  issued  to  Compel 
the  Exercise  of  a  Discretionary  Power.  —  A  State  cannot  be  Compelled 
specifically  to  perform  a  Contract  by  a  Suit  against  its  Officers.  —  Are 
Taxation  and  the  Selection  of  Jurors  simply  Ministerial  ?  —  A  Bill  in 
Equity  cannot  be  filed  against  the  Officers  of  a  State  where  she  is  di- 
rectly interested;  but  the  Rule  does  not  apply  when  her  Interest  grows 
out  of  a  Command  which  she  is  constitutionally  Powerless  to  Give.  — 
The  object  of  the  Eleventh  Amendment  was  to  guard  the  States 
against  Suits  for  Debts  and  on  Contracts,  and  not  to  enable  them  to 
despoil  the  Citizen  and  rely  on  their  Sovereignty  as  a  Defence. 

It  is  now  settled  that  the  sovereignty  of  the  States,  as 
recognized  or  reinstated  by  the  Eleventh  Amendment,  places 
them  beyond  the  reach  of  process  where  they  have  not  given 
their  consent ;  and  that  such  consent  cannot  be  implied  from 
the  general  grant  of  jurisdiction  in  all  cases  arising  under 
the  Constitution  and  laws  of  the  United  States.  An  action 
ex  contractu  cannot,  therefore,  be  maintained  against  a  State 
to  compel  the  fulfilment  of  an  obligation  to  which  her  faith 
is  pledged,  and  which  she  is  impairing,  contrary  to  the  spirit 
and  letter  of  the  clause  which  protects  the  sanctity  of  con- 
tracts ;  nor  can  she  judicially  be  compelled  to  make  compen- 
sation for  a  tort  committed  at  her  command,  however  gross.^ 

1  Cunningham  v.  M.  &  B.  R.  R.  Co.,  109  U.  S.  446;  Carter  v.  Greenhow, 
114  Id  817;  Marye  w.- Parsons,  Id.  325,  Georgia  v.  Jessup,  106  Id.  458. 
Agreeably  to  the  view  taken  m  the  minority  opinion  in  the  Virginia 


1056  SUITS  AGAINST  A   STATE. 

It  is  immaterial  that  the  State  gave  its  consent  to  be  sued 
at  the  time  of  making  the  contract,  or  giving  the  guarantee, 
unless  the  act  also  provides  the  means  of  carrying  the  judg- 
ment into  effect,  and  they  can  be  employed  without  exercis- 
ing a  political  function  in  the  shape  of  making  appropriations, 
or  levying  and  collecting  taxes,  which  forms  no  part  of  its 
judicial  power.  A  contract,  as  we  have  seen,  is  an  under- 
taking that  can  be  enforced  by  process  ;  and  where,  if  the 
courts  were  to  declare  the  contract  binding  they  would  be 
powerless  to  enforce  the  decree,  there  is  no  obligation  in  the 
sense  of  the  Constitutional  prohibition,  and  consequently 
nothing  on  which  it  can  operate.^ 

Coupon  Cases,  if  the  Eleventh  Amendment  does  not  forbid  the  exercise 
of  the  judicial  power  of  the  United  States  in  suits  prosecuted  against  a 
State  by  her  own  citizens,  the  reason  is  that  it  was  not  deemed  necessary 
to  prohibit  what  had  not  been  authorized.  "  The  control  of  such  litiga- 
tion was  impliedly  reserved  to  the  States;  and  it  cannot  have  been  in- 
tended that,  while  the  State  cannot  be  sued  in  any  case  by  a  citizen  of 
another  State  since  the  adoption  of  the  Amendment,  such  a  suit  may  be 
instituted  by  her  own  citizens  under  the  Constitution  and  laws  of  the 
United  States."  Marye  v.  Parsons,  114  U.  S.  325.  The  inference  is 
no  doubt  sound,  but  it  does  not  take  the  case  out  of  the  rule  that  a  re- 
covery may  be  had  against  a  tort-feasor,  although  he  acted  at  the  com- 
mand of  a  superior  who  is  not  joined.  See  Osborn  v.  The  Bank  of  the 
United  States,  9  Wheaton,  748,  843. 

1  See  ante,  577;  The  Railroad  Co.  v,  Tennessee,  101  U.  S.  339; 
Hagood  V.  Southern,  117  Id.  57. 

"  The  question  we  have  to  decide  is  not  whether  the  State  is  liable 
for  the  debts  of  the  bank  to  the  railroad  company,  but  whether  it  can 
be  sued  in  its  own  courts  to  enforce  that  liability.  The  principle  is  ele- 
mentary that  a  State  cannot  be  sued  in  its  own  courts  without  its  con- 
sent. This  is  a  privilege  of  sovereignty.  It  is  conceded  that  when  this 
suit  was  begun  the  State  had  withdrawn  its  consent  to  be  sued,  and  the 
only  question  now  to  be  determined  is  whether  that  withdrawal  impaired 
the  obligation  of  the  contract  which  the  railroad  company  seeks  to  en- 
force. If  it  did  it  was  inoperative,  so  far  as  this  suit  is  concerned,  and 
the  original  consent  remains  in  full  force  for  all  the  purposes  of  the  par- 
ticular contract  or  liability  here  involved. 

"  The  remedy,  which  is  protected  by  the  contract  clause  of  the  Con- 
stitution, is  something  more  than  the  privilege  of  having  a  claim  adjudi- 
cated. Mere  judicial  inquiry  into  the  rights  of  parties  is  not  enough. 
There  must  be  the  power  to  enforce  the  results  of  such  an  inquiry  before 
there  can  be  said  to  be  a  remedy  which  the  Constitution  deems  part  of  a 


ELEVENTH   AMENDMENT. 


1057 


In  applying  this  principle  it  should  he  rememhered  that 
the  grant  of  judicial  power  to  the  United  States  was  an  im- 
plied surrender  in  all  cases  arising  under  the  Constitution  and 
laws  of  the  United  States,  and  where  a  State  and  a  citizen 
of  another  State  are  parties,  of  the  right  of  the  States  to 
be  exempt  from  process.  But  for  the  restiaint  imposed  by 
the  Eleventh  Amendment  the  courts  might  render  a  judg- 
ment in  every  such  instance  wliich  would  be  equally  binding 
whether  the  defendant  was  a  State  or  an  individual.  The 
question  therefore  depends  on  the  operation  and  effect  of  the 
amendment,  and  there  can  be  little  doubt  that  its  purpose 
simply  was  that  the  States  should  not  be  subjected  against 
their  will  to  pecuniary  obligations  which  might  be  enforced 
by  a  mandamus  or  an  injunction  that  would  withdraw  money 
from  the  treasury  without  the  consent  of  the  legislature,  or 


contract.  Inquiry  is  one  thing,  remedy  another.  Adjudication  is  of  no 
vahie  as  a  remedy  unless  enforcement  follows.  It  is  of  no  practical  im- 
portance that  a  right  has  been  established  if  the  right  is  no  more  available 
afterward  than  before.  The  Constitution  preserves  only  such  remedies  as 
are  required  to  enforce  a  contract.  Here  the  State  has  consented  to  be 
sued  only  for  the  purposes  of  adjudication.  The  power  of  the  courts 
ended  when  the  judgment  was  rendered.  In  effect,  all  that  has  been 
done  is  to  give  peisons  holding  claims  against  the  State  the  privilege  of 
having  them  audited  by  the  courts  instead  of  some  appropriate  accounting 
officer.  AVhen  a  judgment  has  been  rendered,  the  liability  of  the  State 
has  been  judicially  ascertained;  but  there  the  power  of  the  court  ends. 
The  State  is  at  liberty  to  determine  for  itself  whether  to  pay  the  judg- 
ment or  not.  The  obligations  of  the  contract  have  been  finally  deter- 
mined, but  the  claimant  has  still  only  the  faith  and  credit  of  the  State  to 
rely  on  for  their  fulfilment.  The  courts  are  powerless.  Everything  after 
the  judgment  depends  on  the  will  of  the  State.  It  is  needless  to  say  that 
there  is  no  remedy  to  enforce  a  contract  if  performance  is  left  to  the  will 
of  him  on  whom  the  obligation  to  perform  rests.  A  remedy  is  only 
wanted  after  entreaty  is  ended.  Consequently,  that  is  not  a  remedy,  in 
the  legal  sense  of  the  term,  which  can  only  be  carried  into  effect  by 
entreaty. 

"  It  is  clear,  therefore,  that  the  right  to  sue,  which  the  State  of  Ten- 
nessee once  gave  its  creditors,  was  not  in  legal  effect  a  judicial  remedy 
for  the  enforcement  of  its  contracts,  'and  that  the  obligations  of  its  con- 
tracts were  not  impaired,  within  the  meaning  of  the  prohibitory  clause 
of  the  Constitution  of  the  United  States,  by  taking  away  what  was  thus 
given."     Railroad  Co.  v.  Tennessee,  101  U.  S.  339. 


1058  LIABILITY  FOR  ACTS  DONE 

liinder  the  operations  of  the  government  as  a  political  and 
sovereign  power.  The  words  are,  "  The  judicial  power  of 
the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity  commenced  or  prosecuted  against  one 
of  the  United  States,  by  citizens  of  another  State  or  by  citi- 
zens or  subjects  of  any  foreign  State  ;  "  and  they  do  not 
denote  that  an  individual  may  take  or  withhold  property 
from  the  lawful  owner,  on  the  plea  that  he  is  acting  for  a 
State  or  at  her  command,  and  thus  virtually  cause  the 
deprivation  which  the  Fourteenth  Amendment  prohibits. 
Such  a  conclusion  would  enable  a  State  to  do  that  circuit- 
ously  which  she  is  forbidden  to  effect  by  direct  means,  and 
confiscate  land  or  goods  arbitrarily,  or  render  a  spoliation 
irredeemable  by  adopting  the  act  as  her  own. 

There  is  consequently  nothing  in  the  Eleventh  Amendment 
to  preclude  such  redress  as  can  be  had  in  a  suit  against  a 
wrong-doer,  because  a  State  is  a  party  to  the  wrong  ;  nor  can 
such  an  inference  be  drawn  from  the  general  principles  of 
jurisprudence.  If  the  State  is  or  must  be  joined  of  record 
under  the  rules  of  practice  or  pleading  the  suit  will  fail.  If 
such  a  joinder  be  not  requisite  the  cause  may  proceed  to  judg- 
ment as  if  the  State  were  not  concerned,  though  no  writ  can 
be  issued  to  bind  her  as  an  organic  whole. 

As  Chief-Justice  Marshall  observed  in  Osborn  v.  The  Bank 
of  the  United  States,^  —  "  If  the  person  who  is  the  real  prin- 
cipal, the  true  source  of  the  mischief,  by  whose  power  and  for 
whose  advantage  it  is  done  be  himself  above  the  law  and 
exempt  from  all  judicial  process,  it  would  be  subversion  of 
the  best-established  principles  to  say  that  the  laws  cannot  af- 
ford the  same  remedies  against  the  agent  employed  in  doing 
the  wrong  which  they  w^ould  afford  against  him  could  his 
principal  be  joined  in  the  suit."  The  privilege  is  the  prin- 
cipal's, not  the  agent's;  and  as  it  would  not  shield  the  latter  if 
both  could  be  joined,  it  is  not  a  reason  why  he  should  not  be 
made  answerable  when  sued  alone.^  A  man  is  not  less  re- 
sponsible for  his  tortious  acts,' or  for  goods  sold  on  his  credit 

1  9  Wheaton,  738,  842. 

2  See  Osborn  v.  The  Bank  of  the  United  States,  9  Wheaton,  738,  843. 


ON  BEHALF  OF  STATE.  1059 

because  he  represents  another,  and  has  no  personal  interest 
in  the  transaction  ;  and  the  fact  that  the  principal  cannot  be 
compelled  to  make  compensation  is  a  reason  for,  and  not 
against,  compelling  the  agent  to  do  what  justice  and  good 
faith  require.  Such  cases  fall  within  the  general  principle 
that  justice  should  be  done  as  between  the  parties,  though 
third  persons  are  concerned  and  may  be  affected  by  the  re- 
sult. The  rule  is  well-settled  at  law,  and  it  applies  in  equity 
unless  the  circumstances  are  such  that  the  chancellor  cannot 
proceed  to  a  decree  consistently  with  the  equity  which  his 
jurisdiction  is  designed  to  promote.  As  the  argument  was 
put  by  the  Chief-Justice  in  Osborn  v.  The  Bank,  the  agent  is 
not  privileged  by  his  connection  with  the  principal ;  and  if  he 
is  responsible  for  his  own  acts  to  the  full  extent  of  the  injury, 
why  should  not  the  preventive  power  of  a  court  of  equity 
also  be  applied  to  him  ?  Why  may  it  not  restrain  him  from 
the  commission  of  a  wrong  which  it  would  punish  him  for 
committing  ?  It  has  accordingly  been  held  that  although  the 
interest  of  a  State  may  be  incidentally  involved  in  the  de- 
cision of  a  cause,  j^et  if  an  effectual  remedy  can  be  had  with- 
out making  her  a  defendant  the  federal  courts  may  take 
cognizance  of  the  suit.^  Such  is  the  intelligible  rule  laid 
down  by  Marshall,  and  the  refinements  with  which  it  has 
since  been  perplexed  can  hardly  be  said  to  promote  the  cause 
of  justice  or  of  constitutional  law.^ 

What  the  Amendment  ordains  is  that  a  State  shall  not  be 
sued.  It  does  not  ordain  that  the  citizen  shall  not  have  jus- 
tice done  him  because  a  State  may  be  collaterally  interested. 
A  suit  may  consequently  be  maintained  in  rem  although  the 
property  is  claimed  by  a  State,  and  judgment  rendered  by  de- 
fault unless  she  enters  an  appearance,^  or  for  the  recovery 
of  specific  things  which  have  been  taken  by  persons  who 
rely  on  a  governmental  command  as  a  justification.      The 

1  The  United  States  v.  Peters,  5  Cranch,  115;  Osborn  v.  The  Bank  of 
the  United  States,  9  Wheaton,  733,  843. 

2  See  Cunningham  v.  The  M.  &  B.  R.  R.  Co.,  109  U.  S.  446,  463. 

8  The  Davis,  10  Wallace,  15;  Clark  v.  Barnard,  108  U.  S.  436;  Cun- 
ningham V.  The  M.  &  B.  R.  R.  Co.,  109  U.  S.  446,  452. 


1060  AN  UNCONSTITUTIONAL  LAW 

suit  is,  under  the  last-mentioned  circumstances,  against  an 
individual  for  conduct  which  is,  on  its  face,  a  violation  of 
the  plaintiffs  right ;  and  he  cannot  make  the  State  a  party 
by  setting  up  an  authority  from  the  executive  or  legislature 
which  they  are  forbidden  to  confer.^ 

1  Cunningham  v.  The  M.  &  B.  R.  R.  Co.,  109  U.  S.  446,  452;  Poin- 
dexter  v.  Greenhow,  114  Id.  271,  288.     See  ante,  pp.  683,  897. 

"  It  is  objected  that  the  suit  of  the  plaintiff  below  could  not  be  main- 
tained, because  it  is  substantially  an  action  against  the  State  of  Virginia 
to  which  it  has  not  assented.  It  is  said  that  the  tax-collector  who  is  sued 
was  an  officer  and  agent  of  the  State,  engaged  in  collecting  its  revenue 
under  a  valid  law,  and  that  the  tax  he  sought  to  collect  from  the  plaintiff 
was  lawfully  due;  that  consequently  he  was  guilty  of  no  personal  wrong, 
but  acted  only  in  an  official  capacity,  representing  the  State,  and  in  re- 
fusing to  receive  the  coupons  tendered  simply  obeyed  the  commands  of 
his  principal,  whom  he  was  lawfully  bound  to  obey;  and  that  if  any  wrong 
has  been  done  it  has  been  done  by  the  State  in  refusing  to  perform  its 
contract,  and  for  that  wrong  the  State  is  alone  liable,  but  is  exempted  from 
suit  by  the  Eleventh  Article  of  Amendment  to  the  Constitution  of  the 
United  States,  which  declares  that  the  '  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by  citizens  or  sub- 
jects  of  any  foreign  State.' 

"  This  immunity  from  suit  secured  to  the  States  is  undoubtedly  a  part 
of  the  Constitution  of  equal  authority  with  every  other,  but  no  greater, 
and  to  be  construed  and  applied  in  harmony  with  all  the  provisions  of 
that  instrument.  That  immunity,  however,  does  not  exempt  the  State 
from  the  operation  of  the  Constitutional  provision  that  no  State  shall 
pass  any  law  impairing  the  obligation  of  contracts ;  for  it  has  long  been 
settled  that  contracts  between  a  State  and  an  individual  are  as  fully  pro- 
tected by  the  Constitution  as  contracts  between  two  individuals.  It  is 
true  that  no  remedy  for  a  breach  of  its  contract  by  a  State,  by  way  of 
damages  as  compensation  or  by  means  of  process  to  compel  its  perform- 
ance, is  open,  under  the  Constitution,  in  the  courts  of  the  United  States, 
by  a  direct  suit  against  the  State  itself  on  the  part  of  the  injured  party, 
being  a  citizen  of  another  State  or  a  citizen  or  subject  of  a  foreign  State. 
But  it  is  equally  true  that  whenever,  in  a  controversy  between  parties  to 
a  suit  of  which  these  courts  have  jurisdiction,  the  question  arises  upon 
the  validity  of  a  law  by  a  State  impairing  the  obligation  of  its  contract, 
the  jurisdiction  is  not  thereby  ousted,  but  must  be  exercised,  with  what- 
ever legal  consequences  to  the  rights  of  the  litigants  may  be  the  result  of 
the  determination.  The  cases  establishing  these  propositions  which  have 
been  decided  by  this  court  sihce  the  adoption  of  the  Eleventh  Amend- 
ment to  the  Constitution  are  numerous.  Fletcher  v.  Peck,  6  Cranch,  87; 
New  Jersey  v.  Wilson,  7  Cranch,  164;  Green  v.  Biddle,  8  Wheat.  1,  81; 


IS   NOT   A  JUSTIFICATION. 


1061 


The  case  may  nevertheless  involve  a  question  which  re- 
quires a  careful  consideration. 

An  action  for  the  recovery  of  property  is  not  analogous  to 
a  suit  brought  to  enforce  a  pecuniary  demand.     Land  does 

Providence  Bank  r.  Billings,  4  Pet.  514;  Woodruff  v.  Trapuall,  10  How. 
190;  Wolff  V.  New  Orleans,  103  U.  S.  358;  Jefferson  Branch  Bank  v. 
Skelly,  1  Black,  436. 

"It  is  also  true  that  the  question  whether  a  suit  is  within  the  prohibi- 
tion of  the  Eleventh  Amendment  is  not  always  determined  by  reference 
to  the  nominal  parties  on  the  record.  The  provision  is  to  be  substantially 
applied  in  furtherance  of  its  intention,  and  not  to  be  evaded  by  technical 
and  trivial  subtleties.  Accordingly,  it  was  held  in  New  Hampshire  v. 
Louisiana,  108  U.  S.  76,  that  although  the  judicial  power  of  the  United 
States  extends  to  controversies  between  two  or  more  States,  it  did  not  em- 
brace a  suit  in  which,  although  nominally  between  two  States,  the  plaintiff 
State  had  merely  permitted  the  use  of  its  name  for  the  benefit  of  its  citi- 
zens in  the  prosecution  of  their  claims,  for  the  enforcement  of  which  they 
could  not  sue  in  their  own  names.  So,  on  the  other  hand  in  Cunning- 
ham y.  Macon  &  Brunswick  Railroad  Co.,  109  U.  S.  446,  where  the  State 
of  Georgia  was  not  nominally  a  party  on  the  record,  it  was  held  that,,  as 
it  clearly  appeared  that  the  State  was  so  interested  in  the  property  that 
final  relief  could  not  be  granted  without  making  it  a  party,  the  court  was 
without  jurisdiction. 

"  In  that  case  the  general  question  was  discussed  in  the  light  of  the 
authorities,  and  the  cases  in  which  the  court  had  taken  jurisdiction  when 
the  objection  had  been  interposed  that  a  State  was  a  necessary  party 
to  enable  the  court  to  grant  relief  were  examined  and  classified.  The 
second  head  of  that  classification  is  thus  described:  '  Another  class  of 
cases  is  where  an  individual  is  sued  in  tort  for  some  act  injurious  to  an- 
other in  regard  to  person  or  property,  to  which  his  defence  is  that  he  has 
acted  under  the  orders  of  the  government.  In  these  cases  he  is  not  sued 
as,  or  because  he  is,  the  officer  of  the  government,  but  as  an  individual; 
and  the  court  is  not  ousted  of  jurisdiction  because  he  asserts  authority  as 
such  officer.  To  make  out  his  defence  he  must  show  that  his  authority 
was  sufficient  in  law  to  protect  him.'  "  And  in  illustration  of  this  prin- 
ciple, reference  was  made  to  Mitchell  v.  Harmony,  13  How.  115;  Bates 
V.  Clark,  95  U.  S.  204;  Meigs  v.  McClung,  9  Cranch,  11;  Wilcox  v.  Jack- 
son, 13  Pet.  498  ;  United  States  v.  Lee,  106  U.  S.  196;  Grisar  v.  McDowell, 
6  Wallace,  363;  Brown  v.  Huger,  21  How.  305;  Poindexter  i'.  Greenhow, 
114  U.  S.  270,  281.  See  ante,  p.  683.  It  followed  that  although  the 
property  which  the  plaintiff  sought  to  recover  had  been  distrained  on 
behalf  of  the  State,  and  would  if  he  failed  be  sold  and  the  proceeds  paid 
into  the  Treasury,  yet  as  the  law  under  which  the  distress  took  place  was 
unconstitutional  it  could  not  be  regarded  as  his  act  and  did  not  render 
him  a  party  to  the  suit.     See  ante,  897. 


1062  SUITS  FOR  SPECIFIC  THINGS. 

not  cease  to  belong  to  the  owner  on  being  forcibly  wrested 
from  his  hands ;  and  each  hour  that  it  is  detained  there  is  a 
new  injury,  for  which  redress  may  be  had  through  a  writ  of 
trespass  or  of  ejectment  against  the  parties  in  possession, 
whether  they  did  or  did  not  participate  in  the  original  wrong. 
Money,  on  the  other  hand,  though  taken  under  an  illegal 
levy  for  taxes,  becomes  as  much  the  property  of  the  State  on 
being  paid  into  the  treasury  as  if  it  had  been  lawfully  ac- 
quired. The  demand  is  no  longer  for  the  specific  notes  or 
coin  extorted  from  the  tax-payer,  but  for  a  like  amount ;  and 
the  treasurer  can  no  more  be  compelled  to  satisfy  it  without 
an  appropriation  by  the  legislature  than  he  could  any  other 
debt.  The  obligation  is  not  his,  but  the  State's ;  and  as  it  is 
exempt  from  process,  the  plaintiff  has  no  remedy  except 
through  a  judgment  against  the  original  wrong-doer,  which 
may  be  nugatory  if  he  is  insolvent  and  the  government  de- 
clines to  refund.  The  line  was  accurately  drawn  in  Osborn 
V.  the  Bank  of  the  United  States,  where  the  bill  would  have 
been  dismissed  had  not  the  $98,000  in  the  hands  of  the  de- 
fendants been  specifically  traced,  and  shown  not  only  to  be 
the  very  notes  and  coin  which  were  taken  from  the  bank,  but 
to  have  been  kept  specifically  apart  to  await  the  event  of 
the  suit.  This  decision,  like  The  United  States  v.  Lee,^  and 
Poindexter  v.  Greenhow,  is  directly  to  the  point  that  specific 
things  —  including  chattels,  lands,  or  coin  —  may  be  recov- 
ered from  the  officers  or  agents  of  a  State,  though  taken  or 
held  in  pursuance  of  her  command,  if  it  be  one  which  she  is 
constitutionally  powerless  to  give. 

A  State  which  comes  voluntarily  forward  as  a  prosecutor, 
plaintiff,  claimant,  or  defendant,  waives  its  privilege,  and 
will  be  subject  to  the  jurisdiction,  not  only  of  the  court  where 
the  proceeding  was  instituted,  but  of  every  other  into  which 
it  is  duly  removed  by  an  appeal,  certiorari^  or  writ  of  error, 
and  will  be  precluded  by  the  judgment  as  finally  pronounced.^ 

1  106  U.  S.  196. 

2  The  Siren,  7  Wallace,  152, 157;  Cohens  v.  Virginia,  6  Wheaton,  264; 
Clark  y.  Barnard,  108  U.  S.  436,  447 ;  Cunningham  v.  The  M.  &  B.  R.  R. 
Co.,  109  Id.  446,  452;  Railroad  Co.  v.  Mississippi,  102  Id.  135;  Tennes- 
see V.  Davis,  100  Id.  257.     See  ante,  p.  1049. 


PECUNIARY  DEMANDS.  1063 

It  would  be  futile  to  enter  a  judgment  against  the  State,  be- 
cause it  could  not  be  enforced ;  but  judgment  may  be  ren- 
dered for  the  defendant,  or  the  judgment  which  has  been 
rendered  against  him  reversed,  on  a  writ  of  error ;  and  both 
parties  will  be  as  much  bound  by  the  result  as  if  the  contro- 
versy were  between  individuals.  Cases,  therefore,  which 
contain  a  federal  ingredient  on  either  side  may  be  instituted 
in,  or  removed  to  a  circuit  court,  or  brought  by  a  writ  of 
error  before  the  national  court  of  last  resort,  although  a  State 
is  the  plaintiff  or  prosecutor,  and  other  questions  are  involved 
growing  out  of  her  laws.^ 

It  is  also  established  that  "  when  a  plain  official  duty, 
requiring  no  exercise  of  discretion,  is  to  be  performed,  and 
performance  is  refused,  any  person  who  has  sustained  per- 
sonal injury  by  such  refusal  may  have  a  mandamus  to 
compel  performance  ;  and  when  such  duty  is  threatened  to 
be  violated  by  some  positive  official  act,  any  person  who  will 
sustain  personal  injury  thereby  for  which  adequate  compen- 
sation cannot  be  had  at  law  may  have  an  injunction  to  pre- 
vent it.  In  such  cases  the  writs  of  mandamus  and  injunction 
are  correlative.  In  either  case  if  the  officer  pleads  the 
authority  of  an  unconstitutional  law  for  the  performance  or 
violation  of  his  duty,  it  will  not  prevent  the  issuing  of  the 
writ."  2  The  law  was  so  held  by  Bradley,  J.,  in  The  Board 
of  Liquidation  v.  McComb,  and  has  been  repeatedly  recog- 
nized or  applied.^  In  The  Board  of  Liquidation  v.  McComb, 
the  Board  was  charged  by  the  statutes  of  Louisiana  with  the 
duty  of  issuing  new  State  bonds  in  place  of  such  as  might  be 
surrendered  by  the  holders.  The  amount  of  the  new  bonds 
was  limited  by  a  constitutional  provision,  and  McComb,  the 
owner  of  some  of  the  new  bonds  already  issued,  filed  a  bill 

»  The  R.  R.  Co.  v.  Mississippi,  102  U.  S.  130,  141;  Tennessee  v.  Davis, 
100  Id.  257  ;  Tennessee  v.  Whitworth,  117  Id.  129. 

2  See  Allen  v.  B.  &  O.  R.  R.  Co.,  114  U.  S.  315,  317. 

'  Osborn  v.  The  Bank  of  the  United  States,  9  Wheaton,  738;  Davis  v. 
Gray,  16  Wallace,  203;  United  States  v.  Boutwell,  17  Id.  604;  United 
States  V.  Schurz,  102  U.  S.  378;  Hartman  v.  Greenhow,  Id.  672;  Seibert 
r.  Lewis,  122  U.  S.  284,  292. 


1064  MANDAMUS   TO  PERFORM  PLAIN 

to  restrain  the  Board  from  issuing  that  class  of  bonds  in 
exchange  for  debts  not  within  the  scope  of  the  statute, 
and  thus  rendering  those  which  he  held  less  valuable.  The 
court  held  that  a  mandamus  or  injunction  will  not  be  issued 
against  the  officers  of  a  State  where  it  is  in  effect  against 
the  State  herself,  or  where  the  effect  would  hamper  or  con- 
trol the  discretionary  power  with  which  they  have  been 
clothed  for  public  purposes.  A  State  cannot  be  sued  with- 
out its  consent,  nor  can  a  court  substitute  its  own  discretion 
for  that  of  a  person  who  is  charged  with  the  performance  of 
a  political  function.  When,  on  the  other  hand,  the  path  is 
so  plainly  marked  out  as  to  leave  no  doubt  as  to  the  line 
which  should  be  followed,  and  a  deviation  from  it  will  be  at 
ouce  illegal  and  injurious,  the  officers  to  whom  the  duty  is 
intrusted  may  be  compelled  to  pursue  the  proper  course,  — 
by  a  mandamus  or  injunction.^  The  injunction  which  had 
been  granted  by  the  Circuit  Court  to  prevent  the  issue  of  the 
illegal  bonds  was  consequently  sustained.  So  in  Allen  v. 
The  Baltimore  and  Ohio  R.  R.  Co.,^  an  injunction  was  issued 
to  prevent  a  distraint  upon  the  complainant's  rolling-stock 
and  trains,  for  the  collection  of  taxes  that  had  been  tendered 
in  coupons  which  the  State  had  agreed  to  receive  as  cash,  but 
subsequently  repudiated. 

In  Rolston  v.  The  State  of  Missouri  Fund  Commissioners,^ 
a  suit  to  constrain  State  officers  to  perform  an  act  which  a 
statute  of  the  State  enjoins  was  said  on  like  grounds  not  to 
be  a  suit  against  the  State  or  within  the  Eleventh  Amend- 
ment. The  proceeding  was  instituted  to  restrain  the  Com- 
missioners of  the  State  of  Missouri  from  selling  a  railroad 
which  was  held  by  the  plaintiffs  as  trustees  for  the  stock- 

1  See  Riggs  w.  Johnson  County,  6  Wallace,  166;  Amy  v.  Supervisors,  11 
Id.  136;  Marbury  v.  Madison,  1  Cranch,  137.  It  was  held  in  this  instance  ' 
that  the  delivery  of  a  commission  which  had  been  signed  by  the  President . 
but  was  withheld  by  his  successor  in  office,  was  a  purely  ministerial  act 
which  the  Supreme  Court  would  have  enforced  by  a  mandamus  to  the 
Secretary  of  State,  were  not  their  original  jurisdiction  confined  to  "  suits 
affecting  ambassadors,  public  ministers,  and  consuls,  and  where  a  State 
is  a  party." 

2  114  U.  S.  311.  «  120  U.  S.  390. 


MINISTERIAL  DUTY. 


1065 


holders  and  creditors  ;  and  the  main  object  was  to  require  the 
governor  to  assign  and  convey  to  the  trustees  all  the  first 
liens  and  mortgages  on  the  road  on  the  payment  of  the 
amount  due.  The  court  held  that  the  case  was  distinguish- 
able from  Louisiana  v,  Jumel»^  on  the  ground  that  the  effort 
there  was  to  get  a  State  officer  to  do  what  a  statute  required 
of  him,  and  not  to  compel  a  State  officer  to  do  what  a  stat- 
ute prohibited  him  from  doing.  The  law  there  made  it  the 
Governor's  duty  to  assign  the  liens  in  question  to  the  trus- 
tees on  their  making  a  certain  payment.  The  trustees  claimed 
that  the  money  had  been  paid  ;  the  officer  said  that  it  was 
not ;  and  there  was  no  controversy  about  his  duty  if  the  pay- 
ment had  taken  place.  This  presented  a  simple  question  of 
fact ;  and  if  it  was  decided  in  favor  of  the  complainants  they 
were  entitled  to  a  decree. 

In  Davis  v.  Gray^  the  principle  was  applied  in  a  somewhat 
different  form,  by  enjoining  the  Governor  of  Texas  and  the 
Commissioner  of  the  State  Land  Office  from  selling  and  de- 
livering patents  for  sections  of  land  which  the  State  had 
agreed  to  bestow  on  a  railway  company.  The  complainants 
had  acted  on  the  faith  of  the  agreement  by  surveying  and 
locating  the  road ;  the  land  was  equitably,  if  not  legally, 
theirs ;  and  the  defendants  could  not  dispose  of  it  to  third 
persons  by  virtue  of  an  authority  which  the  State  could  not 
confer  consistently  with  the  obligation  into  which  she  had 
entered,  and  was  forbidden  by  the  Constitution  to  impair. 

It  has  also  been  held  that  an  act  done  by  a  State  officer, 
in  his  public  capacity,  which  deprives  any  person  of  life, 
liberty,  or  property,  or  operates  as  a  denial  of  the  equal 
protection  of  the  laws,  may,  if  Congress  so  provide,  be  made 
the  subject  of  an  indictment,  and  punished  as  a  misde- 
meanor.^ The  greater  includes  the  less ;  and  if  the  rod  of 
a  criminal  prosecution  can  be  held  over  the  persons  who 
administer  the  State  governments,  whenever  they  transcend 


^  107  U.  S.  7n. 


16  Wallace,  203. 


«  See  ante,  pp.   524,  538;  Ex  parte  Virginia,   100  U.   S.   339;  Civil 
Rights  Cases,  109  Id.  3,  15. 


1066  EXERCISE  OF   DISCRETIONARY  POWER 

the  limits  set  by  the  organic  law,  they  may,  as  it  would 
seem,  be  kept  within  bounds  by  the  milder  application  of  an 
injunction  or  mandamus?- 

These  decisions  mark  the  utmost  point  to  which  the  courts 
have  gone  in  giving  a  judgment,  or  issuing  process,  that  will 
directly  affect  a  State  ;  and  they  cannot  proceed  further, 
consistently  with  the  Eleventh  Amendment,  no  matter  how 
gross  the  tort  or  breach  of  contract,  and  although  their  in- 
action leaves  it  irremediable.  A  purely  ministerial  duty  may 
be  judicially  enforced,  regardless  of  the  rank  of  the  function- 
ary to  whom  it  is  intrusted ;  but  a  judge  cannot  control  a 
public  officer  in  the  exercise  of  a  power  which  is  in  any 
degree  discretionary,  or  confine  him  —  when  two  paths  lie 
open,  and  it  is  for  him,  or  for  the  State,  to  decide  which 
shall  be  pursued  —  to  a  particular  line  of  conduct,  without 
assuming  the  reins  of  government,  and,  so  far  as  the  order 
extends,  superseding  the  legislature  or  executive.^ 

A  State  treasurer,  who  comes  into  possession  of  the  money 
of  the  citizen  under  circumstances  constituting  the  deprivation 
which  the  Amendments  forbid,  may  be  personally  liable  for 
the  amount,  or,  if  the  money  can  be  identified  or  ear-marked, 
ordered  to  refund  it  specifically ;  ^  but  he  cannot  be  com- 
pelled to  make  the  loss  good  out  of  the  funds  in  the  treasury, 
although  the  money  was  deposited  to  the  credit  of  the  State, 
and  went  to  sw^ell  the  balance  in  her  favor.*  So  a  collector 
may  be  enjoined  from  enforcing  an  illegal  tax,  or  one  which 
the  State  agreed  to  forego,^  because  the  law  in  either  case  is 
one  which,  in  legal  contemplation,  she  is  powerless  to  make, 
and  the  collector  is  proceeding  in  his  own  wrong.^  For  like 
reasons,  while  a  municipal  corporation  may  be  compelled  by 
mandamus  to  levy  a  tax  as  a  means  of  paying  its  loans  or 

i  See   Ex  parte  Virginia,  100  U.  S.  339. 

2  Louisiana  r.  Jumel,  107  U.  S.  711.  See  ante,  pp.  129,  131;  Marbury 
V.  Madison,  1  Cranch,  137. 

8  Osborn  v.  The  Bank  of  the  United  States,  9  Wheaton,  738. 

*  See  Poindextery.  Greenhow,  114  U.  S.  269:  Louisiana?'.  Jumel,  107 
Id.  711,  724. 

6  See  ante,  pp.  687,  724.  «  See  ante,  669,  709. 


NOT   ENFORCED   BY   MANDAMUS.  1067 

bonds,  notwithstanding  any  law  which  may  be  made  to  the 
contrary,  short  of  a  dissolution  of  the  corporation,  —  and  a 
like  pressure  may  be  put  for  the  same  end  on  the  judges  of 
a  county  court,^ — no  such  constraint  can  be  put  on  a  State, 
either  directly  or  through  its  officers.  An  act  providing  that 
a  tax  shall  be  levied  and  the  proceeds  appropriated  to  the 
payment  of  a  specific  loan  or  demand  cannot,  as  we  may  in- 
fer, be  enforced  through  a  mandamus  to  the  State  treasurer 
or  assessors,  although  the  creditors  parted  with  their  money 
on  the  faith  of  the  assurance  thus  held  forth,  and  the  duty  is 
so  plainly  defined  as  to  involve  no  element  of  discretion  ex- 
cept, it  may  be,  as  regards  the  assessment  of  the  tax.^ 

In  Louisiana  v.  Jumel  the  suit  grew  out  of  the  contract 
which  gave  rise  to  the  controversy  in  The  Board  of  Liquida- 
tion V.  McComb.  The  owners  of  the  bonds  which  had  been 
issued  in  that  case  filed  a  bill  in  equity  in  the  Circuit  Court 
of  the  United  States  to  compel  the  State  Auditor  and  Treas- 
urer to  pay  the  overdue  coupons  out  of  the  public  funds  in 
the  treasury,  and  enjoin  them  from  applying  any  part  of  the 
taxes  levied  for  that  purpose  to  the  ordinary  expenses  of  the 
government.  They  also  asked  for  a  mandamus  to  compel 
the  same  officers  to  apply  the  amount  collected  on  such  taxes 
to  the  discharge  of  the  coupons.  Both  applications  were 
refused  on  the  ground  that  the  Circuit  Court  had  no  juris- 
diction over  the  State  treasury,  and  was  not  entitled  to  con- 
trol it  indirectly  through  a  proceeding  against  the  officers  to 
whose  charge  it  was  committed,  who  were  answerable  only 
to  the  State,  and  must  act  as  she  directed.  They  might  be 
set  in  motion  by  her,  but  she  could  not  be  bound  through 
them.^ 

In  Hagood  v.  Southern,*  the  State  of  South  Carolina  by  an 
act  of  March  2,  1872,  provided  for  the  issue  of  revenue-bond 
scrip,  and  that  the  same  should  be  received  in  payment  of 
taxes,  and  further  for  the  levy  of  a  tax  of  three  mills  on  the 

1  Seibert  v.  Lewis,  122  U.  S.  284.     See  ante,  709. 

2  Louisiana  v.  Jumel,  107  U.  S.  711,  724. 
8  See  Hagood  v.  Southern,  117  U.  S.  67. 

*  117  U.  S.  51. 
VOL.  II.  — 27 


1068  SPECIFIC   PEKFORMANCE  NOT 

dollar,  to  be  employed  in  the  redemption  of  the  scrip.  Acts 
were  subsequently  passed  forbidding  any  State  or  county 
officer  to  receive  revenue-bond  scrip  in  payment  of  taxes, 
and  repealing  the  section  providing  for  an  annual  tax  of 
three  mills  on  the  dollar.  A  great  depreciation  of  the  reve- 
nue-bond scrip  ensued,  and  the  plaintiff,  who  was  a  large 
holder,  filed  a  bill  setting  forth  the  above  facts  and  praying 
the  Comptroller-General  might  be  compelled  to  perform  the 
duties  enjoined  upon  him  by  the  act  of  March  2,  1872,  by 
directing  the  several  county  auditors  to  take  proper  measures 
for  the  levy  and  collection  of  the  three-mill  tax,  and  that  the 
county  treasurer  shduld  be  required  to  receive  the  revenue- 
bond  scrip  in  tender  of  taxes  due  the  State.^ 

The  court  held  that  the  suit  was  virtually  against  the 
State,  through  her  officers,  to  enforce  the  specific  perform- 
ance of  the  contract  which  she  had  made  with  the  defendant 
and  therefore  within  the  prohibitory  words  of  the  Eleventh 
Amendment.^ 

1  Hagood  V.  Southern,  117  U.  S.  67. 

2  Hagood  V.  Southern,  117  U.  S.  52,  67. 

*'  The  controversy  in  which  the  validity  and  obligation  of  the  scrip 
are  involved  is  the  subject  of  the  present  suits.  The  complainants,  as 
holders  of  this  scrip,  in  behalf  of  themselves  and  of  all  other  holders 
choosing  to  take  part,  are  seeking  to  obtain  by  judicial  process  its  re- 
demption by  the  State,  according  to  the  terms  of  the  statute  in  pursuance 
of  which  it  was  issued,  by  the  levy,  collection,  and  appropriation  of  spe- 
cial taxes  pledged  to  that  purpose,  as  they  claim,  by  an  irrepealable  law, 
constituting  a  contract  protected  from  violation  by  the  Constitution  of 
the  United  States.  And  such  are  the  decrees  which  have  been  rendered 
according  to  the  prayer  of  the  bills.  These  suits  are  accurately  described 
as  bills  for  the  specific  performance  of  a  contract  between  the  complain- 
ants and  the  State  of  South  Carolina,  who  are  the  only  parties  to  it.  But 
to  these  bills  the  State  is  not  in  name  made  a  party  defendant,  though 
leave  is  given  to  it  to  become  such  if  it  chooses;  and  except  with  that  con- 
sent, it  could  not  be  brought  before  the  court  and  be  made  to  appear  and 
defend.  And  yet  it  is  the  actual  party  to  the  alleged  contract,  the  per- 
formance of  which  is  decreed,  —  the  one  required  to  perform  the  decree, 
and  the  only  party  by  whom  it  can  be  performed.  Though  not  nominally 
a  party  to  the  record,  it  is  the  real  and  only  party  in  interest,  the  nom- 
inal defendants  being  the  officers  and  agents  of  the  State,  having  no  per- 
sonal interest  in  the  subject-matter  of  the  suit,  and  defending  only  as 


ENFORCED  AGAINST  A  STATE.  1069 

The  line  between  judicial  and  ministerial  acts  cannot  al- 

representing  the  State.  And  the  things  required  by  the  decrees  to  be 
done  and  performed  constitute  a  performance  of  the  alleged  contract  by 
the  State.  The  State  is  not  only  the  real  party  to  the  controversy,  but 
the  real  party  against  which  relief  is  sought  by  the  suit;  and  the  suit  is 
therefore  substantially  within  the  prohibition  of  the  Eleventh  Anvendment 
to  the  Constitution  of  the  United  States,  which  declares  that  the  judicial 
power  of  the  United  States  shall  not  be  construed  to  extend  to  any  suit 
in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any  for- 
eign State. 

"  The  cause  comes  thus  directly  within  the  authority  of  Louisiana  v. 
Jumel,  107  U.  S.  711.  It  was  there  said,  '  The  question,  then,  is  whether 
the  contract  can  be  enforced,  notwithstanding  the  Constitution,  by  coercing 
the  agents  and  officers  of  the  State,  whose  authority  has  been  withdrawn 
in  violation  of  the  contract,  without  the  State  itself  in  its  political  capac- 
ity being  a  party  to  the  proceedings.  The  relief  asked  will  require  the 
officers  against  whom  the  process  is  issued  to  act  contrary  to  the  positive 
orders  of  the  supreme  political  power  of  the  State,  whose  creatures  they 
are,  and  to  which  they  are  ultimately  responsible  in  law  for  what  they 
do.  They  must  use  the  public  money  in  the  treasury,  and  under  their 
official  control,  in  one  way,  when  the  supreme  power  has  directed  them 
to  use  it  in  another;  and  they  must  raise  money  by  taxation,  when  the 
same  power  has  declared  that  it  shall  not  be  done.'  And  the  remedy 
sought,  in  order  to  be  complete,  would  require  the  court  to  assume  all 
the  executive  authority  of  the  State,  so  far  as  it  related  to  the  enforce- 
ment of  this  law,  and  to  supervise  the  conduct  of  all  persons  charged 
with  any  official  duty  in  respect  to  the  levy,  collection,  and  disbursement 
of  the  tax  in  question,  until  the  bonds,  principal,  and  interest  were  paid 
in  full,  and  that,  too,  in  a  proceeding  in  which  the  State  as  a  State  was 
not,  and  could  not,  be  made  a  party. 

"  It  needs  no  argument  to  show  that  the  political  power  cannot  be 
thus  ousted  of  its  jurisdiction  and  the  judiciary  set  in  its  place.  When  a 
State  submits  itself  without  reservation  to  the  jurisdiction  of  a  court  in  a 
particular  case,  that  jurisdiction  may  be  used  to  give  full  effect  to  what 
the  State  has  by  its  act  of  submission  allowed  to  be  done;  and  if  the  law 
permits  coercion  of  the  public  officers  to  enforce  any  judgment  that  may 
be  rendered,  then  such  coercion  may  be  employed  for  that  purpose.  But 
this  is  very  far  from  authorizing  the  courts,  when  a  State  cannot  be  sued, 
to  set  up  its  jurisdiction  over  the  officers  in  charge  of  the  public  moneys, 
so  as  to  control  them,  as  against  the  political  power,  in  their  administra- 
tion of  the  finances  of  the  State. 

"  If  this  case  is  not  within  the  class  of  those  forbidden  by  the  Constitu- 
tional guarantee  to  the -States  of  immunity  from  suits  in  federal  tribunals, 


1070  SELECTION  OF  JTJROES  AND 

ways  readily  be  drawn  ;  and  in  Ex  parte  Virginia,^  it  was 
held  that  the  selection  of  jurors  belongs  to  the  latter  class,  as 
involving  no  discretionary  power  that  can  bring  it  within  the 
scope  of  the  former.  It  followed  that  an  indictment  might 
be  maintained  against  a  judge  of  a  State  court  for  "  exclud- 
ing or  failing  to  select  as  grand  and  petit  jurors  certain 
citizens  of  the  county  of  Pennsylvania  of  African  race 
and  black  color,  and  on  account  of  their  race,  color,  and 
previous  condition  of  servitude,  and  for  no  other  "l-eason." 
Whether  an  act  was  ministerial  or  judicial  depended  on  its 
character,  and  not  on  the  character  of  the  agent  by  whom  it 
was  performed  ;  and  the  selection  of  jurors  was  as  purely 
ministerial  as  the  levy  of  an  execution  by  the  sheriff.  It 
could  not  therefore  be  said  that  the  act  of  Congress  under 
which  the  indictment  was  drawn  was  unconstitutional,  as 
imposing  penalties  upon  State  judges  for  their  judicial 
action. 

The  conclusion  is  indisputable,  if  jurors  must  be  taken 
as  they  come  to  hand,  without  regard  to  intelligence,  charac- 
ter, and  the  other  qualities  which  should  be  present  in  men 

it  is  diflBcult  to  conceive  the  frame  of  one  which  would  be.  If  the  State 
is  named  as  a  defendant  it  can  only  be  reached  either  by  mesne  or  final 
process  through  its  officers  and  agents,  and  a  judgment  against  it  could 
neither  be  obtained  nor  enforced,  except  as  the  public  conduct  and  gov- 
ernment of  the  ideal  political  body  called  a  State  could  be  reached  and 
affected  through  its  official  representatives.  A  judgment  against  these 
latter,  in  their  official  and  representative  capacity,  commanding  them  to 
perform  official  functions  on  behalf  of  the  State  according  to  the  dictates 
and  decrees  of  the  court  is,  if  anything  can  be,  a  judicial  proceeding 
against  the  State  itself.  If  not,  it  may  well  be  asked,  What  would  con- 
stitute such  a  proceeding  ? 

"When  a  suit  is  brought  in  a  court  of  the  United  States  against  of- 
ficers of  a  State  to  enforce  performance  of  a  contract  made  by  the  State, 
and  the  controversy  is  as  to  the  validity  and  obligation  of  the  contract, 
and  the  only  remedy  sought  is  the  performance  of  the  contract  by  the 
State,  and  the  nominal  defendants  have  no  personal  interest  in  the  sub- 
ject-matter of  the  suit,  but  defend  only  as  representing  the  State,  the 
State  is  the  real  party  against  whom  the  relief  is  souglit,  and  the  suit  is 
substantially  within  the  prohibition  of  the  Eleventh  Amendment  to  the 
Constitution  of  the  United  States.'* 

1  100  U.  S.  339,  348. 


TAXATION  MINISTERIAL.  1071 

who  are  to  be  judges  of  fact  over  their  fellow  citizens.  If,  on 
the  other  hand,  as  most  persons  will  admit,  persons  who  fall 
below  a  certain  level  should  not  be  placed  in  the  jury-box, 
the  question  where  disqualification  begins  may  require  the 
exercise  of  a  nice  discrimination.^  A  challenge  on  the  ground 
of  imbecility  or  insanity  may  call  all  the  judicial  faculties  into 
play  ;  and  no  man  who  might  be  dismissed  from  the  panel  for 
such  a  cause  should  be  enrolled  on  the  list  from  which  the 
jury  is  drawn.  Were  it  not  therefore  for  the  authority  of  a 
majority  of  the  court  we  might  agree  with  the  minority  that 
the  proceeding  was  virtually  against  the  State,  and  an  at- 
tempt to  control  a  discretionary  power  vested  in  her  judges, 
contrary  to  the  principle  laid  down  in  Cunningham  v.  The 
M.  &  B.  R.  R.  Co.2 

Taxation  involves  classification  and  assessment,  and  may 
be  thought  to  require  the  exercise  of  a  discretion  that  can- 
not properly  be  controlled  by  process.  In  Seibert  v.  Lewis,^ 
a  Missouri  law  providing  for  the  levy  and  collection  by  the 
county  courts  of  such  taxes  as  should  be  requisite  for  pay- 
ing the  bonds  which  might  be  issued  by  counties  for  pro- 
moting the  construction  of  railroads,  was  nevertheless  held  to 
be  a  contract  between  the  State  and  the  bondholders,  which 
could  not  be  impaired  by  subsequent  legislation,  and  might 
be  enforced  by  compelling  the  judges  to  do  what  the  legisla- 
ture had  forbidden  except  on  a  condition  which  was  not  ful- 
filled. A  mandamus  from  the  Circuit  Court  of  the  United 
States,  requiring  the  County  Court  of  Cape  Girardeau  to 
make  a  levy  on  all  the  real  estate  and  personal  property  in 
Cape  Girardeau  township  subject  to  taxation,  including  state- 
ments of  merchants  and  manufacturers  doing  business  in  said 
township  was  accordingly  sustained,  although  the  legislature 
of  Missouri  had  in  the  meantime  provided  that  no  such  tax 
should  be  levied  without  the  approval  of  the  State  Circuit 
Court.  The  proceeding  was  virtually  an  action  against  the 
State  for  the  specific  performance  of  a  contract  that  the 


1  See  post,  p.  00.  «  109  u.  S.  446,  453. 

»  122U.  S..284. 


1072  EQUITABLE   RELIEF   WHERE 

amount  requisite  for  the  payment  of  township  bonds  should 
be  levied  by  the  county  courts,  and  some  discrimination  is 
needed  to  reconcile  the  result  with  the  language  held  in 
Hagood  V.  Southern.^ 

Whether  relief  can  be  given  in  equity  at  the  instance  of 
a  citizen,  in  a  matter  which  directly  or  indirectly  concerns  a 
State,  depends  in  general  on  the  rules  of  chancery  pleading ; 
which  are,  on  the  one  hand,  that  a  party  whose  relation  to 
the  cause  is  merely  formal  need  not  be  joined  where  he  can- 
not be  served  or  is  not  amenable  to  process;  and  on  the 
other,  that  a  chancellor  will  not  proceed  without  having 
every  one  before  him  whose  interest  will  be  materially 
affected  by  the  decree.  When,  therefore,  a  State  is  in  the 
latter  category  the  bill  can  neither  be  prosecuted  without 
her,  consistently  with  justice,  nor  against  her  under  the 
Eleventh  Amendment,  and  must  consequently  be  dismissed.^ 
In  Cunningham  v.  M.  &  B.  R.  R.  Co.,  the  Governor  of 
Georgia  indorsed  the  bonds  of  a  railway  company  under  a 
statute  providing  that  they  should  be  a  lien  operating  as  a 
mortgage  on  all  the  property  of  the  company,  and  that  if 
they  were  not  paid  at  maturity  he  might  enter  and  proceed 
to  a  sale.  Default  having  been  made  by  the  company,  a  sale 
took  place  in  pursuance  of  the  statute,  and  the  State  became 
the  purchaser.  A  bill  was  then  filed  against  the  Governor, 
State  Treasurer,  and  the  directors  of  the  railway,  averring 
that  bonds  were  indorsed  subsequently  to  the  first  issue 
and  before  the  sale,  and  purchased  by  the  complainants  who 
thereby  became  entitled  to  the  benefit  of  the  statutory  lien, 
and  asking  that  the  sale  should  be  set  aside  as  having  been 
made  in  fraud  of  their  rights,  or  that  the  property  should 
be  decreed  to  be  in  trust  for  them.  The  court  held  that 
inasmuch  as  the  relief  prayed  for  would  affect  the  title  of 
the  State,  the  suit  was  virtually  against  her,  and  could  not 
be  maintained.      Harlan  and  Field,   JJ.,  dissented  on  the 

1  117  U.  S.  51.     See  ante,  p.  1068. 

2  Cunningham  v.  The  M.  &  B.  R.  R.  Co.,  109  U.  S.  446,  456;  Poin- 
dexter  v.  Greenhow,  114  Id.  279-287;  Hagood  v.  Southern,  117  Id.  52; 
In  re  Ayers,  123  U.  S.  443. 


A   STATE  IS   INTERESTED. 


1073 


ground  that  the  case  fell  directly  within  the  jurisdiction  of 
the  Circuit  Court,  as  defined  in  The  United  States  v.  Lee,^ 
and  it  appeared  from  the  allegations  of  the  bill,  as  admitted 
by  the  demurrer,  that  the  property,  though  held  by  officers 
of  the  State  as  her  absolute  property,  was  not  rightfully  so 
held.  In  contemplation  of  law  a  State  cannot  do  or  partici- 
pate in  a  wrong,  and  the  defendants  must  be  regarded  as 
acting  on  their  own  responsibility,  and  without  a  principal 
on  whose  command  they  could  rely  as  a  justification.^ 

When  the  question  arose  in  a  recent  instance,^  the  court 
held  that  whether  a  State  is  a  party  to  the  suit  within  the 
meaning  of  the  Eleventh  Amendment  depends  on  the  nature 
of  the  case  as  presented  by  the  whole  record,  rather  than  on 
the  persons  who  are  set  forth  nominally  as  defendants  ;  and 
where  they  have  no  substantial  interest,  and  the  State  is  the 
only  party  that  will  really  be  affected  by  the  judgment,  "  if 
the  jurisdiction  does  not  fail  for  want  of  power  over  the  par- 
ties, it  fails  as  to  the  nominal  defendants  for  want  of  a  suita- 
ble subject-matter."  A  bill  filed  to  enjoin  the  auditor  of  the 
State  of  Virginia,  its  attorney-general,  and  district  attorneys 
from  bringing  suits  against  tax-payers  who  had  tendered 
the  coupons  which  the  State  had  agreed  to  receive  in  pay- 
ment was  consequently  dismissed,  because  the  decree  would 
preclude  the  State  from  employing  the  only  agents  through 
whom  she  could  collect  the  sums  alleged  to  be  due,  while 
they  would  remain  personally  unaffected.  Brought  to  such  a 
test,  Osborn  v.  The  Bank  of  the  United  States,  as  the  court  in- 
timated, seems  questionable,  and  may  hereafter  be  overruled 
in  the  excess  of  zeal  for  State  sovereignty.  The  defendants 
were  there  in  effect  stakeholders  of  a  sum  of  money  which 
they  had  taken  from  the  bank  for  a  tax  imposed  by  the  legis- 
lature of  Ohio,  and  would  have  to  pay  over  to  the  State 
treasury  if  the  cause  was  decided  in  their  favor.  The  inter- 
est of  the  State  was  therefore  as  manifest  as  that  they  had 
none.     The  true  view,  as  given  by  Chief-Justice  Marshall,  is 


1  See  106  U.  S.  196. 

«  In  re  Ayers,  123  U.  S.  143. 


*  See  ante,  p.  897. 


1074  EQUITABLE  RELIEF  WHERE 

that  an  agent  is  not  less  responsible  for  a  wrong  because  he 
acts  at  the  command  of  a  principal  who  is  exempt  from  pro- 
cess ;  and  as  the  judgment  does  not  affect  the  State  with  a 
liability  or  debt,  and  simply  prevents  her  from  profiting  by 
an  unlawful  act  done  on  her  behalf,  it  is  not  against  her  in 
the  sense  of  the  Eleventh  Amendment. 

The  discussion  In  re  Ayers  took  a  wide  range,  but  the 
point  actually  decided  was  that  a  State  can  no  more  be  spe- 
cifically compelled  to  fulfil  a  contract  through  a  proceeding 
against  her  officers  than  if  she  were  directly  sued.  This  view 
is  not  at  variance  with  the  decisions  that  an  injunction  may 
be  issued  to  prevent  a  deprivation  of  liberty  or  property, 
although  the  defendant  is  acting  on  behalf  of  the  State, 
and  relies  on  an  unconstitutional  command  of  the  governor 
or  legislature  as  a  justification.  A  bill  cannot  be  filed  to 
compel  a  State  to  keep  faith  by  receiving  her  promises  to 
pay  as  payment ;  but  a  tax-payer  who  has  made  such  a  ten- 
der may  enjoin  the  collector  or  treasurer  from  levying  on  his 
property,  or  recover  it  back  in  detinue  or  replevin.  For  like 
reasons  a  State  cannot  appear  in  court  as  plaintiff  against 
another  State  when  she  has  no  real  interest,  and  the  pro- 
ceeding is  instituted  on  behalf  of  an  individual  who  could 
not  recover  in  his  own  name.^  Such  a  method  would  aggra- 
vate the  inconvenience  which  the  Thirteenth  Amendment 
was  intended  to  obviate,  by  enabling  a  State  to  act  as  the 
representative  or  assignee  of  creditors,  and  proceed  to  a 
judgment  which  could  not  be  enforced  without  coercing  the 
debtor  State,  contrary  to  the  intent  of  the  Constitution  that 
the  authority  of  the  United  States  shall  be  exercised  only  on 
individuals. 

The  rule  will  not  be  enforced  when  it  will  defeat  the 
equity  which  it  is  intended  to  promote ;  nor  to  screen  an 
agent  from  his  share .  of  responsibility  for  a  wrongful  act 
done  at  the  command  of  his  principal ;  nor  when  the  com- 
mand is  one  which  the  principal  is  powerless  to  give,  and  the 

1  New  Hampshire  v.  Louisiana,  108  U.  S.  76;  In  re  Ayers,  123  Id. 
443,  489. 


A  STATE  IS   INTERESTED. 


1075 


wrong  is  in  contemplation  of  law  exclusively  the  agent's. 
Such  is  the  case  when  the  authority  of  a  State  is  relied  on 
as  a  justification  for  the  breach  of  a  contract  which  she  has 
made,  or  a  deprivation  which  she  is  forbidden  to  inflict,  and 
a  remedy  may  then  be  afforded  against  the  defendant,  al- 
though the  State  is  not  and  could  not  be  joined  in  the  bill.^ 

If  a  collector  is  about  to  distrain  for  taxes  that  could  not 
be  laid  consistently  with  the  Constitution  of  the  United 
States,  or  that  have  been  tendered  in  coupons  which  the 
State  agreed  to  receive  as  cash,  or  the  property  of  the  tax- 
payer is  taken  under  such  circumstances  as  a  distress,  the 
wrong  may  be  dealt  with  as  if  the  State  were  not  concerned, 
and  an  injunction  issued  against  the  collector  and  the  persons 
claiming  under  him ;  or  the  complainant  may  recover  his 
land  or  goods  in  a  replevin  or  ejectment.^  Such,  also,  agree- 
ably to  the  United  States  v.  Lee,  is  the  principle  when  such 
a  wrong  is  done  or  deprivation  inflicted  under  an  act  of  Con- 
gress or  an  order  from  the  President.^ 

It  was  justly  said  in  Cunningham  v.  The  M.  &  B.  R.  R. 
Co.,*  that  *'  no  money,  decree,  or  judgment  can  be  entered 
against  a  State  in  terms,  or  through  her  officers  or  treasurer," 
and  the  court  also  declared  that  a  foreclosure  suit  must  also 
fail.  The  latter  proposition  may  be  a  logical  inference  from 
the  former,  because  a  decree  of  foreclosure  necessarily  in- 
volves a  computation  of  the  amount  due  by  the  mortgagor, 
and  is  in  effect  an  execution  against  the  property  which  has 
been  pledged  as  a  security  for  payment,  which,  agreeably  to 
the  practice  in  this  country,  may  be  enforced  by  a  sale.  But 
it  does  not  follow  that  redress  should  be  withheld  from  a 
mortgagee  because  the  property  is  also  mortgaged  to  the 
State,  or  that  he  will  lose  his  remedy  if  she  enters  into  pos- 
session or  buys  under  a  power  of  sale  fraudulently,  or  in 


^  Osbom  V.  The  Bank  of  the  United  States,  9  Wheaton ;  Poindexter 
V.  Greenhow,  114  U.  S.  271.     See  ante,  897. 

2  Osborn  v.  The  Bank  of  the  United  States,  9  Wheaton ;  Poindexter 
V.  Greenhow,  114  U.  S.  271;  Allen  v.  The  B.  &0.  R.  R.  Co.,  114  Id.  311. 

8  106  U.  S.  196. 

*  109  U.  S.  446. 


1076  CAN  A   STATE  WITHHOLD  THINGS 

violation  of  the  purpose  for  which  it  was  conferred.  Un- 
der these  circumstances  both  parties  claim  under  the  same 
grantor ;  and  as  the  question  is  which  has  the  better  right 
to  a  title  which  each  treats  as  good,  the  State  should  not, 
by  arbitrarily  or  illegally  seizing  the  property  in  dispute, 
preclude  a  judicial  inquiry,  or  acquire  not  only  nine  but  ten 
points  of  the  law.  Such  a  case  is  different  from  that  where 
the  complainant  claims  under  an  independent  title,  which 
the  State  contests. 

The  judgment  in  Cunningham  v.  The  M.  &  B.  R.  R.  Co.^ 
may  also  be  thought  to  clash  with  the  conclusion  reached  in 
The  United  States  v.  Lee.  In  both  instances  the  Government 
derived  title  under  proceedings  which,  though  regular  on  their 
face,  were  impeached  for  a  latent  flaw,  —  the  allegation  being 
in  the  former  case  a  breach  of  trust,  in  the  latter  a  fraudulent 
rejection  of  a  tender.  If  the  charge  was  true  the  title  of  the 
State  was  invalid,  and  she  could  not  constitutionally  direct 
that  the  property  should  be  held  to  the  exclusion  of  the 
rightful  owner.  Yet  the  court  admitted  the  evidence  and 
gave  relief  in  one  case,  and  dismissed  the  bill  in  the  other. 

In  the  above  instances  the  defect  lay  in  the  proceeding 
through  which  the  title  was  acquired,  but  the  owner  would 
seem  equally  entitled  to  redress  where  a  State  claims  under  a 
vendor  who  has  sold  what  he  could  not  lawfully  confer.  A  bad 
title  is  not  rendered  good  by  such  a  transfer ;  nor  can  a  man 
who  has  conveyed  his  property  deprive  the  purchaser  by  sub- 
sequently granting  it  to  the  State.  Whenever,  therefore,  title 
in  a  State  or  the  general  government  is  alleged  in  bar  of  a  suit 
against  individuals  for  specific  property  the  court  should  in- 
quire into  the  reality  of  the  defence.  If  the  property  is  hers 
the  suit  will  fail  j  if  it  is  not  the  State  cannot  sanction  a  depri- 
vation which  she  is  forbidden  to  inflict.^  There  is  no  middle 
ground  between  such  a  course  and  holding  that  a  bald  alle- 
gation by  the  Attorney- General  that  the  title  of  a  State  or  of 

1  109  U.  S.  446.     See  ante,  p.  1072. 

2  106  U.  S.  196;  see  ante,  p.  889;  Osborn  v.  The  Bank  of  the  United 
States,  9  Wheaton  p.  738. 


THAT  HAVE  BEEN  INJURIOUSLY  TAKEN?  1077 


the  United  States  is  involved  must  be  blindly  accepted  by 
the  court,  —  a  contention  which  was  overruled  in  the  United 
States  V.  Lee.^ 

Fully  to  understand  the  Eleventh  Amendment  we  must 
recur  to  the  controversy  which  led  to  its  adoption.  Agree- 
ably to  Hamilton's  interpretation  ^  the  clause  extending  the 
judicial  power  of  the  United  States  "  to  controversies  between 
a  State  and  citizens  of  another  State  "  was  not  intended  to 
lay  the  States  open  to  suits  for  pecuniary  demands  which  if 
successful  would  deprive  "  the  State  governments  of  the 
privilege  of  paying  their  own  debts  in  their  own  way,  free 
from  any  constraint  but  that  which  flows  from  the  obligation 
of  good  faith."  This  was  the  more  obvious  because  if  the 
plaintiff  obtained  judgment  it  could  not  be  enforced  except 
through  a  war  against  the  defaulting  State,  or  the  hardly  less 
objectionable  means  indicated  in  Story  on  the  Constitution,  of 
a  mandamus  to  the  State  treasurer,  which  would  place  the 
revenues  of  the  State  under  the  control  of  the  courts.  If  the 
clause  warranted  a  suit  against  a  State  a  like  view  should 
be  taken  of  the  analogous  words  relating  to  "  controversies 
where  the  United  States  shall  be  a  party,"  and  yet  no  one 
contended  for  such  an  interpretation.  Had  not  this  argu- 
ment been  overruled  in  Chisholm  v,  Georgia^  there  would 

1  See  the  dissenting  opinion  of  Harlan  &  Field,  JJ.,  in  Cunningham 
V.  M.  &  B.  R.  R.  Company,  109  U.  S.  461.  "  Although  held  by  officers  of 
the  State  as  her  absolute  property,  it  is  not  rightfully  so  held.  It  is  this 
aspect  of  the  present  decision  which  constrains  me  to  dissent  from  the 
opinion  of  the  court.  If  the  citizen  asserts  a  claim  or  lien  upon  property 
in  the  possession  of  officers  of  a  State,  the  doors  of  the  courts  of  justice 
ought  not  to  be  closed  against  him  because  those  officers  assert  ownership 
iu  the  State.  The  court  should  examine  the  case  so  far  as  to  determine 
whether  the  State's  title  rests  upon  a  legal  foundation.  If  that  title  is 
found  to  be  insufficient,  and  if  the  State,  claiming  its  Constitutional  ex- 
emption from  suit,  refuse  to  appear  in  the  suit  as  a  party  of  record,  the 
court  ought  to  proceed  to  a  final  decree  as  between  the  complainant  and 
those  who  are  in  possession  of  the  property,  leaving  the  State  to  assert  her 
claim  in  any  suit  she  might  bring.  This  must  be  so,  otherwise  the  citizen 
may  be  deprived  of  his  property  and  denied  his  legal  rights,  simply  because 
the  officers  of  a  State  take  possession  of  and  hold  it  for  the  State." 

2  Federalist,  No.  81.  »  2  Dallas,  419. 


1078  ELEVENTH  AMENDMENT. 

have  been  no  occasion  for  the  Eleventh  Amendment;  and 
we  may  consequently  believe  that  it  was  intended  to  bring 
the  Constitution  back  to  the  ground  taken  by  Hamilton,  and 
not  to  enable,  as  has  been  contended,  the  agents  of  a  State  to 
despoil  her  citizens,  and  then  rely  on  her  sovereignty  as  a 
defence  to  an  action  brought  to  compel  restitution.^ 

1  See  ante,  p.  889. 


LECTURE  L. 

The  Judiciary  Act  of  1789  as  contrasted  with  subsequent  Legislation,  — 
Removal  of  Causes  under  the  "•  Force  Bill,"  and  the  Revised  Statutes. 

—  Jurisdiction  under  the  Patent  Laws,  and  as  to  Contracts  for  the 
Sale  and  Letting  of  Patents.  — Petitions  for  the  Removal  of  Causes, 
and  what  they  must  set  forth.  —  The  State  Court  cannot  inquire  into 
the  Facts,  but  both  Courts  stand  at  the  same  Level  as  regards  the  Law; 
and  neither  can  bind  or  conclude  the  other.  —  The  Circuit  Court  can- 
not take  the  Case,  and  the  State  Court  should  not  let  it  go,  unless  the 
Record  shows  that  the  Circumstances  justify  and  require  the  Change.  — 
Both  courts  may  proceed  notwithstanding  the  Filing  of  the  Petition, 
subject  to  a  Writ  of  Error  to  the  Supreme  Court  of  the  United  States.  — 
It  is  enough,  when  the  Jurisdiction  is  original,  that  the  parties  should 
be  from  different  States  at  the  Time  when  the  Judgment  is  entered ; 
but  the  Cause  cannot  be  Removed  on  the  Ground  of  Citizenship, 
unless  the  requisite  Conditions  exist  when  the  Suit  is  instituted,  as 
well  as  when  the  Application  is  made.  —  The  Right  of  Removal  cannot 
be  circumscribed  by  State  Legislation.  —  In  determining  whether  the 
Right  exists  the  Court  will  have  Regard  to  the  actual  Relations  of  the 
Parties,  and  not  to  the  Order  in  which  they  are  ranged  by  the  pleader. 

—  Inconveniences  incident  to  the  Removal  of  Causes  under  the  existing 
laws.  —  Separable  Controversies,  and  Removal  for  local  Prejudice  or 
Influence. 

We  have  seen  how  far  reaching  is  the  grant  of  judicial 
power,  including  as  it  does  not  only  questions  arising  out  of 
the  principles  and  working  of  the  government  and  the  re- 
straints imposed  on  the  several  States,  but  cases  of  admiralty 
and  maritime  jurisdiction,  and  every  case  which  though 
founded  on  the  State  laws  involves  a  federal  question  whether 
it  is  or  is  not  controverted  or  put  at  issue,  and  still  further 
controversies  which  though  not  concerning  the  Constitution 
or  laws  of  the  United  States,  are  between  citizens  of  different 
States,  or  where  an  alien  is  a  party.  While  such  potentially 
is  the  jurisdiction  of  the  United  States  it  does  not  follow  that 
the  full  measure  of  the  authority  should  be  vested  in  the 


1080  JUDICIARY  ACT  OF  1789. 

federal  tribunals.  The  Constitution  declares  how  far  the 
judicial  power  of  the  government  shall  extend,  but  the  ques- 
tion whether  it  shall  be  exercised  is  left  to  Congress.  If,  as 
the  language  held  in  Martin  v.  Hunter  *  would  seem  to  imply, 
the  federal  courts  should,  to  carry  out  the  intent  of  the  Con- 
stitution, be  empowered  to  take  cognizance  of  every  question 
arising  under  its  provisions  or  the  laws  of  the  United  States, 
the  whole  duty  of  Congress  in  the  premises  will  be  fulfilled 
by  giving  a  writ  of  error  to  the  Supreme  Court  of  the  United 
States.  Such,  as  we  have  seen,  was  the  method  adopted  at  the 
outset  of  the  government  while  it  was  inspired  or  guided  by 
the  framers  of  the  Constitution ;  and  we  may  believe  that  it 
was  eminently  wise.  Save  in  the  single  instance  of  a  contro- 
versy between  citizens  of  the  same  State  claiming  under  grants 
from  different  States,  it  was  only  where  the  character  of  the 
parties  gave  jurisdiction  that  a  suit  could  be  brought  in  the 
circuit  courts  of  the  United  States  under  the  Judiciary  Act 
of  1789,  and  the  power  of  removal  was  confined  to  cases 
where  an  alien,  or  a  citizen  of  another  State,  was  sued  in  a 
State  court  by  a  citizen  of  the  State.  Questions  arising  under 
the  Constitution  and  laws  of  the  United  States,  with  the  ex- 
ception above  noted,  were  relegated  in  the  first  instance  to  the 
State  tribunals,  and  it  was  only  when  the  decision  of  the 
highest  court  of  the  State  was  adverse  to  some  right  or  privi- 
lege derived  under  the  general  government  that  the  Supreme 
Court  of  the  United  States  could  be  called  on  to  correct  the 
error. 

This  system  was  well  calculated  to  maintain  the  dignity  of 
the  court  and  give  time  and  opportunity  for  the  mature  de- 
liberation requisite  for  the  performance  of  its  exalted  func- 
tion as  the  guardian  and  interpreter  of  the  national  Consti- 
tution. Nee  deus  intersit  nisi  dignus  vindice  nodus  is  a  maxim 
which  applies  in  public  life  not  less  than  on  the  stage,  and 
should  not  be  overlooked  in  regulating  the  intervention  of 
the  tribunal  which  is  to  act  as  the  balance-wheel  of  the 
Constitution. 

The  jurisdiction  conferred  by  the  Constitution  may,  as  we 
have  seen,  be  original  or  appellate,  and  cases  which  are  within 
1  1  Wheaton,  328. 


REMOVAL  TO   CIRCUIT   COURT. 


1081 


the  grant  of  judicial  power  may  be  brought  before  the  federal 
courts  in  three  different  ways :  first,  in  the  ordinary  mode, 
by  the  service  of  process,  and  filing  a  libel  or  declaration  in  a 
circuit  or  district  court  of  the  United  States  ;  secondly,  by 
the  removal  of  causes  which  have  been  commenced  in  the 
State  tribunals  into  the  circuit  courts  of  the  United  States ; 
thirdly,  by  a  writ  of  error  from  the  Supreme  Court  of  the 
United  States,  or  an  appeal  to  that  tribunal. 

The  power  of  removal,  like  that  to  proceed  originally,  was 
at  first  limited  to  cases  where  there  might  be  a  failure  of  jus- 
tice if  it  were  withheld.  Under  the  Judiciary  Act  of  1789  a 
suitor  who  came  voluntarily  into  a  State  court  as  plaintiff 
had  to  abide  by  his  choice,  whether  the  defendant  was  or  was 
not  a  citizen  of  the  State  ;  and  the  cause  could  not  be  re- 
moved by  the  defendant  unless  he  was  an  alien  or  a  citizen  of 
a  different  State  from  that  in  which  he  was  sued.  Such  was 
the  rule  as  it  regarded  the  character  of  the  parties,  and  there 
could  be  no  removal  for  the  nature  of  the  cause  of  action  ex- 
cept when  the  controversy  lay  between  citizens  of  the  same 
State,  claiming  under  grants  of  land  from  different  States. 
This  reticence  was  not  due  to  any  doubt  as  to  the  existence 
or  scope  of  the  power,  but  from  a  well-founded  belief  that  the 
great  mass  of  private  rights  growing  out  of  the  customary 
and  statute  laws  of  the  several  States  should  be  left  to  their 
tribunals,  with  the  privilege  of  taking  any  federal  question 
which  might  actually  arise  in  the  course  of  the  proceedings 
to  the  Supreme  Court  of  the  United  States ;  and  when  the 
occasion  required  it  Congress  did  not  hesitate  to  adopt  a 
different  and  more  stringent  policy. 

The  Force  Bill  of  March,  1833,  provided,  in  view  of  the 
threatened  resistance  of  South  Carolina  to  the  collection  of  the 
revenue,  that  whenever  a  suit  or  prosecution  was  commenced 
in  a  State  court  against  an  officer  of  the  United  States  or  other 
person,  for  an  act  done  under  the  revenue  laws  of  the  United 
States,  or  under  color  thereof,  or  for  or  on  account  of  any 
right,  authority,  or  title  set  up  or  claimed  by  the  defendant 
under  any  such  law,  the  case  might  be  removed  before  trial 
into  the  federal  court  of  the  proper  district ;  and  that  a  habeas 
corpus  might  issue  for  the  relief  of  any  person  confined  by 


1082  REMOVAL   UNDER  THE   "  FORCE  BILL " 

any  authority  or  decree  for  any  act  done  in  pursuance  of  an 
authority  from  the  United  States.^ 

It  is  noteworthy  that  so  little  were  the  United  States  in- 
clined to  enlarge  their  powers  that  down  to  the  passage  of 
this  bill  the  collectors  of  the  ports,  the  revenue  officers,  the 
marshals  of  the  circuit  courts,  and  all  other  persons  in  the 
civil  and  military  service  of  the  United  States  were  left  to 
the  jurisdiction  of  the  State  tribunals,  and  might,  like  other 
individuals,  be  brought  to  trial  and  convicted,  or  made  an- 
swerable in  damages,  for  an  alleged  violation  of  the  local 
laws,  without  any  power  on  the  part  of  the  government  to 
intervene  for  their  protection  except  through  a  writ  of  error 
from  the  Supreme  Court  of  the  United  States  for  the  correc- 
tion of  any  mistake  that  might  be  committed  in  point  of  law. 
The  first  material  change  in  the  relations  of  the  State  and 
national  tribunals  was  recommended  by  Jackson,  and,  as  I 
have  already  stated,  was  passed  by  Congress  in  response  to  a 
statute  of  South  Carolina  rendering  the  collection  of  duties  in 
that  State  penal ;  and  it  is  not  surprising  that  when  secession 
came  thirty  years  afterwards  from  the  same  quarter  the  power 
of  removal  was  carried  to  an  extreme.  The  act  of  March  3, 
1863,  passed  during  the  height  of  the  Civil  War,  provided 
that  any  suit  or  prosecution  instituted  in  a  State  court  for  an 
act  done  by  virtue  of  any  order  given  by  the  President  or 
under  color  of  his  authority,  or  that  of  an  act  of  Congress, 
might  be  removed  to  the  circuit  courts  of  the  United  States 
of  the  district,  and  that  thereupon  the  jurisdiction  of  the  State 
court  should  cease.^ 

1  See  Tennessee  v.  Davis,  100  U.  S.  257,  302;  Passmore  Williamson's 
Case,  26  Pa.  St.  1. 

2  Although  the  right  of  removal  ought  not  to  lie  dormant  when  there 
is  need  for  its  exercise,  it  is  nevertheless  attended  with  serious  inconven- 
iences which  should  render  Congress  slow  to  substitute  it  for  the  long- 
established  method  of  appeal ;  and  the  decisions  of  the  Supreme  Court  of 
the  United  States  present  numerous  instances  where  the  exercise  of  the 
power  has  led  to  a  reversal  on  technical  grounds,  attended  with  delay,  and 
ending  in  a  failure  of  justice. 

The  operation  of  such  statutes  and  the  effect  which  they  may  have  in 
hindering  the  ordinary  course  of  justice  are  shown  by  the  case  of  Hodg- 
son V.  Millward,  3  Grant,  406;  5  Phila.  243,  302.    Suit  was  there  brought 


AND   DURING  THE   CIVIL  WAR.  1083 

With  these  and  some  other  exceptions  of  a  like  kind,  the 

in  the  Supreme  Court  of  Pennsylvania  sitting  at  Nisi  Prius  against  the 
marshal  of  the  Circuit  Court  of  the  United  States  for  a  trespass  committed 
by  entering  the  premises  of  the  plaintiff,  who  was  the  editor  of  a  news- 
paper, and  carrying  away  the  type  and  printing-presses.  The  defendants 
justified  under  a  warrant  from  the  district- attorney  of  the  United  States, 
alleging  that  the  property  in  question  had  been  used  in  the  publication  of 
libellous  and  seditious  articles  against  the  government,  and  reciting  an 
order  from  the  President  of  the  United  States  that  it  should  be  seized  for 
confiscation  under  the  act  of  1861.  This  defence  was  overruled  and  a 
verdict  found  for  the  plaintiff  on  the  ground  that  the  alleged  order  was 
not  proved  or  produced,  and  that  the  writing  brought  into  court  was  not 
the  due  process  of  law  required  by  the  Fifth  Amendment,  and  certainly 
not  a  justification  for  an  unreasonable  search  and  seizure  contrary  to  the 
Fourth.  A  petition  was  then  filed  in  the  same  tribunal  for  the  removal 
of  the  cause  to  the  Circuit  Court  of  the  United  States  under  the  fifth  sec- 
tion of  the  act  of  March  3,  1863.  It  was  contended  on  the  plaintiff's 
behalf  that  the  act  was  unconstitutional,  and  that  even  if  Congress  could 
establish  a  dictatorship,  or  confer  despotic  power  on  the  President,  there 
was  no  sufficient  evidence  that  the  trespass  was  committed  by  virtue  or 
under  color  of  authority  from  him,  or  of  an  act  of  Congress.  Both  objec- 
tions were  overruled.  The  record  showed,  agreeably  to  the  view  taken 
by  the  court,  that  the  defendants  acted  under  a  warrant  reciting  an  order 
from  the  President,  signed  by  the  district- attorney  of  the  United  States 
as  such,  and  directed  to  William  Mill  ward,  marshal.  This  was  such  a 
color  of  authority  as  the  statute  contemplated;  an  appearance  of  right 
might  give  color  where  there  was  no  substance.  It  was  not  necessary  to 
express  an  opinion  with  regard  to  the  validity  of  the  act  of  Congress. 
Whether  constitutional  or  not,  it  raised  a  question  which  might  be  with- 
drawn from  the  State  courts  and  referred  to  a  federal  tribunal.  A 
motion  subsequently  made  in  the  Circuit  Court  to  set  aside  the  order  of 
removal,  and  remit  the  cause  to  the  Court  of  Nisi  Prius  was  dismissed 
by  Judge  Grier,  who  said  that  if  the  defendants  had  a  justification  it  was 
under  an  act  of  Congress ;  and  they  might  require  that  it  should  be  heard 
and  determined  by  the  national  tribunals. 

A  like  question  arose  in  Kulp  v.  Ricketts,  5  Phila.  305.  The  plaintiff 
had  been  arrested  and  imprisoned  by  the  chief  of  police  of  the  borough  of 
Wilkesbarre,  by  virtue  of  an  order  from  the  Secretary  of  War  for  dis- 
couraging and  endeavoring  to  prevent  enlistments.  He  sued  for  damages 
in  the  Common  Pleas  of  Luzerne  County,  and  the  defendant  sought  to 
have  the  case  removed  to  the  Circuit  Court  of  the  United  States.  The 
Common  Pleas  held  that  although  the  proceeding  was  on  its  face  simply 
an  action  of  trespass  by  one  citizen  of  Pennsylvania  against  another,  the 
petition  of  removal  showed  that  the  defence  turned  upon  an  act  of  Con- 
gress. The  case  was  therefore  clearly  within  the  grant  of  judicial  power 
to  the  United  States,  and  the  removal  must  be  allowed. 
VOL.  II.  —  28 


1084  KEMOVAL  UNDER   THE  REVISED   STATUTES 

course  marked  out  by  Congress  in  the  last  century  was  pur- 
sued for  more  than  seventy  years  with  a  success  and  general 
acquiescence  that  might  have  induced  the  legislature  to 
pause  before  venturing  on  a  change  which  was  not  regarded 
as  desirable,  either  by  the  Bar  or  the  community.  The  wis- 
dom of  the  fathers  is,  however,  not  infrequently  foolishness 
in  the  eyes  of  the  children ;  and  when  the  Civil  War  brought 
the  dangers  incident  to  the  abuse  of  State  rights  into  relief, 
there  was  a  natural  tendency  to  enlarge  the  scope  of  the 
federal  powers,  without  considering  whether  the  government 
would  not  be  as  efficient  within  its  original  bounds.  The 
dominant  motive  was  apprehension  of  the  South,  as  reorgan- 
ized after  the  rebellion  with  the  increased  representation  re- 
sulting from  the  Fifteenth  Amendment;  and  it  had  such  a 
hold  on  the  public  mind  that  Congress  did  not  always  suffi- 
ciently consider  the  effect  of  the  measures  which  it  dictated 
on  the  country  as  a  whole.  Nowhere  is  the  drift  towards  cen- 
tralization more  apparent  than  in  the  limitations  imposed  on 
the  jurisdiction  of  the  State  courts  by  the  Revised  Statutes, 
and  by  the  act  of  March  3,  1875,  which  translated  the  Third 
Article  of  the  Constitution  into  laws  without  the  nice  dis- 
crimination shown  in  the  Judiciary  Act  of  1789.  Not  only 
was  original  jurisdiction  conferred  on  the  federal  courts  in 
all  controversies  arising  under  the  Constitution  or  laws  of 
the  United  States,  but  either  party  might  remove  such  a 
cause  from  the  State  courts  after  their  jurisdiction  had  at- 
tached, although  he  was  not  only  a  citizen  of  the  State,  but 
had  brought  the  suit,  and  assigned  no  cause  for  taking  it 
from  the  tribunal  which  he  had  selected.  A  litigant  might 
consequently  proceed,  in  the  first  instance,  in  the  courts  of 
his  own  State,  and,  after  ascertaining  the  views  of  the  judges, 
transfer  the  action  to  the  Circuit  Court  in  the  hope  —  which 
in  some  instances  amounted  to  a  certainty  —  of  a  more  favor- 
able reception.  As  the  law  stood  before  these  acts  an  alien  or 
a  citizen  of  another  State,  who  was  sued  by  a  citizen  of  the 
State  in  which  the  action  was  brought,  might  remove  the 
cause ;  but  no  such  privilege  could  be  exercised  by  a  plain- 
tiff, or  simply  on  the  ground  that  the  case  involved  a  federal 
question.    Under  these  acts  cases  arising  under  the  Constitu- 


AND  ACT  OF  MARCH  3,   1875. 


1085 


tion  and  laws  of  the  United  States  might  be  transferred  to 
a  circuit  court,  whether  the  person  who  filed  the  petition 
was  plaintiff  or  defendant,  and  though  he  was  a  citizen  of  the 
State,  and  presumably  secure  of  an  impartial  hearing. 

The  magnitude  of  this  innovation,  and  the  effect  which  it 
may  have  on  the  relations  of  the  State  and  national  tribunals, 
will  be  apparent  if  we  reflect  that  if  any  part  of  a  cause  is 
within  the  grant  of  judicial  power  the  entire  cause  is  within 
it,^  and  that  in  determining  this  question  we  must  consider, 
not  what  is  actually  pleaded  or  put  at  issue,  but  whether  any 
Constitutional  provision  or  law  of  Congress  is  so  far  material 
to  the  right  asserted  on  the  one  side,  or  the  answer  made  on 
the  other,  that  if  the  law  were  repealed,  or  the  Constitution 
abrogated,  the  plaintiff  would  not  be  entitled  to  judgment, 
or  the  defence  would  fail.  It  is  immaterial  that  the  plaintiff 
does  not  mean  to  raise,  or  the  defendant  to  contest,  the  point, 
because  he  may  do  so  ;  and  jurisdiction,  as  Chief-Justice 
Marshall  pointed  out,  does  not  depend  on  the  course  taken 
by  the  parties,  but  on  the  ground  covered  by  the  judgment. 
Thus  a  suit  on  a  bond  or  promissory  note  depends,  so  far  as 
the  contract  is  concerned,  on  the  law  of  the  State ;  but  inas- 
much as  the  demand  is  for  lawful  money  of  the  United  States, 
which  involves  the  constitutionality  of  the  Legal-Tender  Acts, 
and  the  judgment  will  determine  whether  payment  is  to  be 
made  in  notes  or  coin,  the  case  arises  under  the  Constitution 
and  laws  of  the  United  States,  and  theoretically  may  be  re- 
moved to  the  Circuit  Court.^  It  is  not  surprising  that  the 
disposition  of  the  legislature  to  carry  the  jurisdiction  of  the 
United  States  to  an  extent  which  overburdens  the  court  of 
last  resort  should  dispose  the  latter  to  adjust  the  scale  by 
inclining  in  the  opposite  direction ;  and  such  a  tendency  is 
apparent  in  a  recent  case  of  much  importance,  from  the  nature 
of  the  controversy  and  as  a  precedent. 

In  Kartell  v,  Tilghman^  the  court  held  that  a  suit  could 

1  Starin  v.  New  York,  115  U.  S.  248,  259 ;  Southern  Pacific  R.  R.  v. 
California,  118  Id.  109. 

2  See  ante,  p.  990;  Trebilcock  v,  Wilson,  12  Wallace,  687. 
«  99  U.  S.  547. 


1086  JURISDICTION  UNDER   THE  PATENT  LAWS, 

not  be  maintained  in  the  federal  courts  to  obtain  redress  for 
an  alleged  violation  of  a  contract,  although  the  subject-matter 
was  a  patent,  owing  its  existence  to  the  Constitution  of  the 
United  States,  and  there  would  have  been  no  cause  of  action 
had  the  patent  laws  been  repealed.  The  complainant  filed  a 
bill  alleging  that  he  was  the  original  inventor  of  a  process  for 
engraving  by  means  of  a  sand-blast,  and  that  he  had  agreed 
that  the  defendant  should  use  the  invention  on  the  perform- 
ance of  conditions  which  the  latter  had  not  fulfilled,  and  was 
on  the  contrary  using  the  sand-blast  without  performing  his 
part  of  the  agreement.  The  bill  concluded  with  a  prayer  for 
an  injunction  to  prevent  the  infringement  and  for  an  account. 
The  defendant  pleaded  a  license,  which  he  failed  to  prove,  and 
the  court  below  decreed  the  relief  asked  for.  The  bill  was  filed 
under  the  act  of  1836,  which  conferred  jurisdiction  on  the  cir- 
cuit courts  in  suits  in  law  or  equity  arising  under  the  patent  or 
copyright  laws  of  the  United  States.  No  instance  could  well 
be  more  directly  within  the  rule  laid  down  in  Osborn  v.  The 
Bank  of  the  United  States,  that  jurisdiction  depends,  not  on 
what  is  actually  traversed,  but  on  what  might  be  put  at  issue, 
and  will  be  concluded  by  the  judgment.  If  the  case  disclosed 
by  the  bill  was  one  arising  under  the  patent  laws,  the  defendant 
could  not,  consistently  with  that  decision,  put  the  plaintiff  out 
of  court  by  conceding  the  validity  of  the  patent  and  relying 
on  the  contract  as  a  justification.  Laying  this  view  aside  and 
considering  the  case  in  the  aspect  in  which  it  was  regarded  by 
the  court  above,  as  a  suit  for  the  specific  performance  of  a  con- 
tract, and  not  to  obtain  redress  for  an  infringement,  we  should 
still  be  led  to  the  same  conclusion.  Taking  the  plea  and  bill 
together,  the  case  involved  two  material  questions :  Had  the 
plaintiff  an  exclusive  right  to  the  invention?  Did  the  con- 
tract vest  the  right  in  the  defendant,  or  afford  a  justification 
for  what  would  otherwise  be  an  infringement  ?  Unless  the 
United  States  could  Constitutionally  confer  such  a  right,  the 
defendant  was  entitled  to  judgment,  notwithstanding  any 
failure  on  his  part  to  substantiate  the  plea  by  evidence.  It  is 
essential  to  the  validity  of  a  contract  of  sale,  that  the  ven- 
dor shall  have  the  right  which  he  undertakes  to  vest  in  the 


AND  OF  CONTRACTS  FOR  THE  SALE  OF  A  PATENT.  1087 

purchaser ;  and  if  his  title  depends  on  an  act  of  Congress  the 
court  cannot  close  their  eyes  to  the  fact  in  rendering  judg- 
ment, or  say  that  the  case  does  not  arise  under  the  laws  of 
the  United  States.  It  might  therefore  be  said  in  this  in- 
stance, as  it  was  said  in  Osborn  v.  The  Bank  of  the  United 
States,  of  the  act  incorporating  the  bank,  that  but  for  the 
patent  laws  the  plaintiff  would  have  no  case,  that  if  they 
were  repealed  the  case  would  fail,  and  that  he  could  not  come 
into  court  without  bringing  those  laws  and  the  Constitution 
by  virtue  of  which  they  were  enacted,  in  his  hand.  The  suit 
might  no  doubt  have  been  brought  in  a  State  court,  because 
it  involved  the  interpretation  and  effect  of  a  contract ;  but  it 
would  seem  to  have  been  not  less  clearly  within  the  grant  of 
the  judicial  power  to  the  United  States. 

Waite,  C.  J.,  and  Swayne  and  Bradley,  JJ.,  dissented,  and 
the  latter  said  :  ""  It  may  be  laid  down  as  a  general  principle 
that  where  a  case  necessarily  involves  a  question  arising  un- 
der the  Constitution  or  laws  of  the  United  States,  and  cannot 
be  decided  without  deciding  that  question,  it  is  a  case  arising 
under  the  Constitution  and  laws,  and  may  be  brought,  as  the 
law  now  stands,  in  the  Circuit  Court  of  the  United  States, 
although  other  questions  may  likewise  be  involved  which 
might  be  tried  and  decided  in  the  State  courts.  I  do  not 
believe  in  the  doctrine  that  the  presence  of  a  question  of 
municipal  law  in  a  case  which  necessarily  involves  federal 
questions  can  deprive  the  federal  courts  of  their  jurisdiction. 
It  is  too  narrow  a  construction  of  the  judicial  powers  and 
functions  of  the  federal  government  and  its  courts." 

The  view  thus  expressed  is  in  entire  accordance  with  the 
judgment  in  Littlefield  v.  Perry,^  where  it  was  held  that  a 
suit  which  raises  a  question  of  infringement  is  an  action  aris- 
ing under  the  patent  laws,  and  the  party  who  is  entitled  to 
compensation  for  such  a  wrong  may  proceed  in  the  Circuit 
Court  of  the  United  States.  Such  a  suit  may  involve  the 
construction  of  a  contract  as  well  as  the  patent,  but  that  will 
not  oust  the  court  of  its  jurisdiction.  If  a  patent  is  involved 
it  carries  with  it  the  whole  case. 

1  21  Wallace,  205,  230. 


1088  PETITION  FOR   REMOVAL,   AND 

The  change  was  not  less  great  as  regards  the  character  of 
the  parties.  A  defendant  who  was  an  alien,  or  who  was  sued 
in  a  State  where  he  did  not  reside,  by  a  citizen  of  another 
State,  might  remove  the  cause  under  the  Judiciary  Act  of 
1789 ;  but  no  such  privilege  could  be  exercised  simply  on 
the  ground  that  the  parties  on  one  side  were  not  citizens  of 
the  same  State  as  the  parties  on  the  other.  Agreeably  to  the 
act  of  1775,  all  controversies  between  citizens  of  different 
States  might  be  brought  in  or  transferred  to  the  federal  tri- 
bunals, although  the  party  who  asked  for  the  removal  was  a 
citizen  of  the  State,  and  presumably  secure  of  an  impartial 
hearing. 

The  act  of  March  3, 1875,  provided  that  all  suits  arising  under 
the  Constitution  and  laws  of  the  United  States  and  all  contro- 
versies between  citizens  of  different  States  might  be  brought 
in  the  Circuit  Court  of  the  United  States;  and  that  every  such 
case  might  be  withdrawn  from  the  State  courts  at  the  will  of 
either  party.  All  that  was  requisite  for  such  removal  under 
this  statute  was  that  the  applicant  should  file  a  petition  in 
the  State  court  before  or  during  the  term  at  which  the  cause 
could  be  first  tried  and  before  the  trial  thereof,  attended  by 
a  bond  with  good  and  sufficient  surety  for  his  or  their  enter- 
ing a  certified  copy  of  the  record  in  the  Circuit  Court  of  the 
proper  district  at  its  then  next  session,  and  pa3'ing  all  costs 
that  might  be  awarded  by  the  Circuit  Court  if  it  was  of  opin- 
ion "  that  the  suit  was  improperly  removed  ;  "  and  thereupon 
it  became  the  duty  of  the  State  court  "  to  proceed  no  fur- 
ther," and  that  of  the  Circuit  Court  to  "  proceed  in  the  same 
manner  as  if  the  suit  had  originally  been  commenced  therein." 
The  cause  might  be  remanded  if  the  removal  proved  to  be 
erroneous ;  but  as  this  could  not  be  ascertained  in  many  in- 
stances without  a  minute  inquiry  into  controverted  facts,  and 
the  decision  might  be  reviewed  on  a  writ  of  error  by  the 
Supreme  Court  of  the  United  States,  a  hearing  on  the  merits 
might  be  indefinitely  postponed  at  the  will  of  either  party. 

These  clauses,  which  are  still  in  force,  except  so  far  as  they 
have  been  modified  or  repealed  by  the  act  of  1887,  were  not 
distinctly  drawn.     They  provide  for  the  filing  of  a  petition, 


WHAT  IT  MUST  SET  FORTH. 


1089 


but  do  not  state  what  it  must  set  forth,  or  require  that  its 
allegations  shall  be  verified  by  an  oath.  As  the  State  court 
"is  not  obliged  to  forego  its  jurisdiction  until  a  case  is  made 
out  which  on  its  face  shows  that  the  petitioner  can  remove 
the  cause  as  a  matter  of  right,"  ^  and  may  consider  whether 
the  prayer  is  well  founded  in  point  of  law,  we  may  infer  that 
its  hand  cannot  be  stayed  by  a  bald  allegation  that  the  case 
is  one  arising  under  the  Constitution  or  laws  of  the  United 
States,  nor  without  specifying  the  matters  on  which  the  peti- 
tioner bases  his  application.^  But  the  question  which  tribu- 
nal had  cognizance  of  and  was  entitled  to  inquire  into  the 
facts  was  long  doubtful,  although  it  is  now  settled  in  favor 
of  the  federal  tribunals.^  If  the  petition  is  filed  in  due  form, 
and  sets  forth  the  necessary  facts,  it  is  the  duty  of  the  State 
court  to  proceed  no  further ;  and  every  subsequent  step  will 
be  erroneous  and  a  ground  of  reversal.  The  dicta  in  some 
instances  have  gone  further,  and  to  the  point  that  a  judgment 
rendered  after  the  right  of  removal  has  been  perfected  is 
coram  non  judice  and  void.*  But  we  may  infer  from  the  lan- 
guage held  in  other  instances  that  such  a  judgment,  though 
erroneous,  cannot  be  impeached  collaterally,  and  will  stand 
until  reversed.  A  sworn  denial  that  the  petitioner  is  a 
citizen  of  another  State  will  not  therefore  vary  the  case 
or  enable  the  State  court  to  retain  its  hold,  although  the 
issue  may  be  tried  in  the  Circuit  Court,  and  the  cause  sent 
back  if  the  petition  proves  to  be  false.°    It  may  be  gathered 


»  See  Removal  Cases,  100  U.  S.  457. 

2  See  Amy  v.  Manning,  144  Mass.  153;  Gordon  v.  Longest,  16  Peters, 
97;  as  cited  in  Virginia  v.  Rives,  100  U.  S.  313,  338;  Burlington,  Cedar 
Rapids,  &  Northern  R.  R.  Co.  v.  Dunn,  122  Id.  515. 

8  Stone  V.  South  Carolina,  117  U.  S.  430;  Carson  v.  Hyatt,  118  Id.  279; 
Burlington,  Cedar  Rapids,  &  Northern  R.  R.  Co.  v.  Dunn,  122  Id.  513. 

*  Virginia  v.  Rives,  100  U.  S.  313,  338;  Burlington,  Cedar  Rapids  & 
Northern  R.  R.  Co.  v.  Dunn,  122  Id.  515. 

^  "  It  must  be  confessed  that  previous  to  the  cases  of  Stone  v.  South 
Carolina,  117  U.  S.  430,  433,  and  Carson  v.  Hyatt,  118  U.  S.  279,  decided 
at  the  last  term,  the  utterances  of  this  court  on  that  question  had  not 
always  been  as  clear  and  distinct  as  they  might  have  been.  Thus,  in 
Gordon  v.  Longest,  16  Pet.  97,  in  speaking  of  removals  under  sect.   12 


1090  PETITION  CONCLUSIVE  OP  THE  FACTS, 

from  the  language  held  in  this  case,  as  cited  below,  that  both 
courts  stand  at  the  same  level  as  regards  the  law,  and  that 

of  the  Judiciary  Act  of  1789,  it  was  said  (p.  103),  *  It  must  be  made  to 
appear  to  the  satisfaction  of  the  State  court  that  the  defendant  is  an  alien, 
or  a  citizen  of  some  other  State  than  that  in  which  the  suit  was  brought ;  * 
and  in  Railway  Company  v.  Ramsey,  22  Wallace,  322,  329,  that  'if  upon 
the  hearing  of  the  petition  it  is  sustained  by  the  proof,  the  State  court 
can  proceed  no  further.'  In  other  cases  expressions  of  a  similar  charac- 
ter are  found,  which  seem  to  imply  that  the  State  courts  were  at  liberty 
to  consider  the  actual  facts,  as  well  as  the  law  arising  on  the  face  of  the 
record,  after  the  presentation  of  the  petition  for  removal. 

"At  the  last  term  it  was  found  that  this  question  had  become  a  practi- 
cal one,  about  which  there  was  a  difference  of  opinion  in  the  State  courts, 
and  to  some  extent  in  the  circuit  courts ;  and  so,  in  deciding  Stone  v. 
South  Carolina,  we  took  occasion  to  say  '  All  issues  of  fact  made  upon 
the  petition  for  removal  must  be  tried  in  the  Circuit  Court,  but  the  State 
court  is  at  liberty  to  determine  for  itself  whether,  on  the  face  of  the  record, 
a  removal  has  been  effected.'  It  is  true,  as  was  remarked  by  the  Supreme 
Judicial  Court  of  Massachusetts  in  Amy  v.  Manning,  144  Mass.  153,  that 
this  was  not  necessary  to  the  decision  in  that  case,  but  it  was  said  on  full 
consideration  and  with  the  view  of  announcing  the  opinion  of  the  court 
on  that  subject. 

"  Only  two  weeks  after  that  case  was  decided  Carson  v.  Hyatt  came  up 
for  determination,  in  which  the  precise  question  was  directly  presented ; 
as  the  allegation  of  citizenship  in  the  petition  for  removal  was  contradicted 
by  a  statement  in  the  answer,  and  it  became  necessary  to  determine  what 
the  fact  really  was.  We  there  affirmed  what  had  been  said  in  Stone  v. 
South  Carolina,  and  decided  that  it  was  error  in  the  State  court  to  proceed 
further  with  the  suit  after  the  petition  for  removal  was  filed,  because  the 
Circuit  Court  alone  had  jurisdiction  to  try  the  question  of  fact  which  was 
involved. 

"  This  rule  was  again  recognized  at  this  term  in  Carson  v.  Dunham,  121 
U.  S.  421,  and  is  in  entire  harmony  with  all  that  had  been  said  in  the 
opinions  in  some  of  the  cases.  To  our  minds  it  is  the  true  rule  and  cal- 
culated to  produce  less  inconvenience  than  any  other.  The  theory  on 
which  it  rests  is  that  the  record  closes,  so  far  as  the  question  of  removal  is 
concerned,  when  the  petition  for  removal  is  filed  and  the  necessary  security 
furnished.  It  presents  then  to  the  State  court  a  pure  question  of  law,  and 
that  is  whether,  admitting  the  facts  stated  in  the  petition  for  removal  to 
be  true,  it  appears  on  the  face  of  the  record,  —  which  includes  the  petition 
and  the  pleadings  and  proceedings  down  to  that  time,  —  that  the  petitioner 
is  entitled  to  a  removal  of  the  suit.  That  question  the  State  court  has  the 
right  to  decide  for  itself,  and  if  it  errs  in  keeping  the  case,  and  the  high- 
est court  of  the  State  affirms  its  decision,  this  court  has  jurisdiction  to 


BUT  NOT  AS  TO  THE  LAW.  1091 

if  there  is  a  difference  of  opinion,  each  of  them  may  proceed 
to  final  judgment,  leaving  the  question  which  has  jurisdiction 
to  be  determined  on  error  by  the  Supreme  Court  of  the  United 
States.  Such  a  course  may  bear  hardly  on  the  unlucky 
suitors  who  are  exposed  to  untold  delay  and  double  costs 

correct  the  error,  considering,  for  that  purpose,  only  the  part  of  the  record 
which  ends  with  the  petition  for  removal,  Stone  v.  South  Carolina,  117 
U.  S.  430,  and  cases  there  cited. 

*'  But  even  though  the  State  court  should  refuse  to  stop  proceedings, 
the  petitioning  party  may  enter  a  copy  of  the  record  of  that  court,  as  it 
stood  on  the  filing  of  his  petition,  in  the  Circuit  Court,  and.  have  the  suit 
docketed  there.  If  the  Circuit  Court  errs  in  taking  jurisdiction,  the  other 
side  may  bringthe  decision  here  for  review,  after  final  judgment  or  decree, 
if  the  value  of  the  matter  in  dispute  is  sufficient  in  amount.  Railroad 
Company  v.  Koontz,  104  U.  S.  5,  15.  In  that  case,  the  same  as  in  the 
writ  of  error  to  the  State  court,  the  question  will  be  decided  on  the  face 
of  the  part  of  the  record  of  the  State  court  which  ends  with  the  petition 
for  removal;  for  the  Circuit  Court  can  no  more  take  a  case  until  its  juris- 
diction is  shown  by  the  record  than  the  State  court  can  be  required  to  let 
it  go  until  the  record  shows  that  its  jurisdiction  has  been  lost.  The  ques- 
tions in  the  two  courts  will  be  identical,  and  will  depend  on  the  same  rec- 
ord, namely,  that  in  the  State  court,  ending  with  the  petition  for  removal. 
The  record  remaining  in  the  State  court  will  be  the  original ;  that  in  the 
Circuit  Court  an  exact  copy.  But  inasmuch  as  the  petitioning  party  has 
the  right  to  enter  the  suit  in  the  Circuit  Court,  notwithstanding  the  State 
court  declines  to  stop  proceedings,  it  is  easy  to  see  that  if  both  courts  can 
try  the  issues  of  fact  which  may  be  made  on  the  petition  for  removal,  the 
records  from  the  two  courts  brought  here  for  review  will  not  necessarily 
always  be  the  same.  The  testimony  produced  before  one  court  may  be 
entirely  different  from  that  in  the  other;  and  the  decisions  of  both  courts 
may  be  right  upon  the  facts  as  presented  to  them  respectively.  Such  a 
state  of  things  should  be  avoided  if  possible,  and  this  can  only  be  done  by 
making  one  court  the  exclusive  judge  of  the  facts.  Upon  that  question 
there  ought  not  to  be  a  divided  jurisdiction.  It  must  rest  with  one  court 
alone,  and  that,  in  our  opinion,  is  more  properly  the  Circuit  Court.  The 
case  can  be  docketed  in  that  court  on  the  first  day  of  the  next  term,  and 
the  issue  tried  at  once.  If  decided  against  the  removal,  the  question  is 
now,  by  the  act  of  March  3,  1887,  c.  373,  24  Stat.  552,  put  at  rest,  and 
the  jurisdiction  of  the  State  court  established  in  the  appropriate  way. 
Under  the  act  of  March  3,  1875,  c.  137,  18  Stat.  470,  such  an  order  could 
have  been  brought  here  for  review  by  appeal  or  writ  of  error,  and  to  ex- 
pedite such  hearings  our  Rule  32  was  adopted."  Burlington  R.  R.  Co.  v. 
Dunn,  122  U.  S.  513,  515. 


1092  BOTH  COURTS   MAY  PROCEED, 

without  fault  on  their  part,  and  indicates  that  the  right  of 
removal  ought  not  to  extend  to  any  case  where  it  is  not  neces- 
sary to  guard  against  a  greater  evil. 

It  follows,  on  the  same  ground,  that  however  clearly  the 
petition  may  bring  the  case  within  the  rule,  the  Circuit  Court 
cannot  issue  an  injunction  to  stay  the  proceedings  in  the 
State  court,  or  preclude  the  exercise  of  the  legal  discretion 
which  the  removal  acts  accord  and  the  State  court  is  bound 
to  exercise  for  the  benefit  of  the  suitor.^ 

The  decisions  at  the  same  time  are  that  a  new  suit  relat- 
ing to  a  cause  of  action  which  has  been  transferred,  may  be 
stayed  by  an  injunction  from  the  Circuit  Court,  although 
it  is  founded  on  the  judgment  of  the  State  court  and  in- 
tended to  carry  that  into  effect.^ 

A  different  rule  obtains  in  criminal  proceedings,  where  the 
truth  and  sufficiency  of  the  matters  set  forth  in  the  petition 
must  be  determined  in  the  court  of  original  jurisdiction,  sub- 
ject to  the  revisory  power  of  the  national  court  of  last  resort ; 
and  if  the  accused  does  not,  in  the  opinion  of  the  trial  court, 
allege  and  prove  enough  to  give  the  Circuit  Court  jurisdiction, 
he  may  be  tried  and  convicted,  and  the  case  subsequently 
brought  before  the  Supreme  Court  of  the  United  States 
on  a  writ  of  error.^ 

While  the  grant  of  judicial  power  extends  to  every  case 
which  actually  or  potentially  involves  a  federal  element, 
it  does  not  follow  that  the  right  of  removal  can  be  exer- 
cised merely  because  such  a  question  might  be  raised,  if  the 
pleadings  or  evidence  show  that  it  is  not  actually  contro- 
verted or  at  issue,  and  the  case  in  fact  turns  on  points 
arising  under  the  constitution  or  laws  of  the  State. 

Such  is  the  rule  when  a  case  is  brought  before  the  Su- 
preme Court  of  the  United  States  on  a  writ  of  error  or 

1  The  Chesapeake  &  Ohio  R.  R.  Co.  v.  White,  111  U.  S.  134,  137; 
Railroad  Co.  v.  Koontz,  104  Id.  5;  Railroad  Co.  v.  Dunn,  19  Wallace,  294; 
Stone  V.  Sargent,  129  Mass.  503 ;  French  v.  Hay,  22  Wallace,  250.  See 
post,  p.  1-103.  2  SeeJ9os^  p.  1103. 

8  Strander  v.  West  Virginia,  100  U.  S.  303;  Neal  v.  Delaware,  103 
Id.  370,  409. 


SUBJECT  TO  A  WRIT  OF  ERROK. 


1093 


appeal;^  and  it  applies  when  it  is  sought  to  preclude  a 
State  court  from  taking  cognizance  of  matters  within  its 
appropriate  sphere,  on  the  ground  that  in  doing  so  it  may- 
trench  on  the  federal  Constitution  or  an  act  of  Con- 
gress.2 

The  petition  must  set  forth  the  facts  requisite  to  warrant 
the  removal  in  point  of  law,  and  if  this  be  not  done  the  omis- 
sion will  not  be  aided  by  intendment.  It  is  not  therefore 
enough  to  aver  that  the  petitioner  resides  in  another  State, 
because  residence  is  not  necessarily  equivalent  to  citizenship.^ 
What  must  be  averred  to  show  that  the  "  controversy  "  is 
under  the  Constitution  or  laws  of  the  United  States  is  not 
clear,  but  it  has  been  held  that  before  a  circuit  court  can  be 
required  to  retain  or  a  State  court  be  obliged  to  forego  a  cause, 
for  reasons  not  involving  the  citizenship  of  the  parties,  "  it 
must  appear  upon  the  record  by  a  statement  of  facts  in  a 
legal  and  logical  form,  such  as  is  required  in  good  pleading, 
that  the  suit  is  one  which  really  and  substantially  involves 
a  dispute  or  controversy  as  to  a  right  which  depends  upon 
the  construction  or  effect  of  the  State  Constitution  or  some 
law  or  treaty  of  the  United  States.  It  is  not  enough  for  the 
party  who  seeks  a  removal  of  his  cause  to  say  that  the  suit 
is  one  arising  under  the  Constitution.  He  must  state  the 
facts  so  as  to  enable  the  court  to  see  whether  the  right  he 
claims  does  really  and  substantially  depend  upon  the  con- 
struction of  that  instrument."  * 

The  jurisdiction  of  the  circuit  courts  is  now  regulated  by 
section  689,  subdivision  3,  of  the  Revised  Statutes,  and  by  the 
act  of  March  3,  1875,  as  repealed,  superseded,  or  amended 


1  Brown  v.  Colorado,  106  U.  S.  95;  Detroit  R.  R.  Co.  v.  Guthard,  114: 
Id.  133,  137;  Kansas  Association  v.  Kansas,  120  Id.  103. 

2  Provident  Savings  Life  Insurance  Society  v.  Ford,  114  U.  S.  635, 
641;  Germania  Ins.  Co.  r.  Wisconsin,  119  Id.  473,  477;  Starin  v.  New 
York,  115  Id.  248,  257. 

8  Continental  Ins.  Co.  v.  Rhoads,  119  U.  S.  287;  Pepper  v.  Fordyce,  Id. 
409 ;  Evarthart  v.  Huntsville  College,  122  Id.  223. 

4  Gold  Washing  Co.  v.  Keyes,  96  U.  S.  199,  204;  Gibbs  v.  Crandall, 
120  Id.  105,  109. 


1094       REMOVAL  UNDER   THE  ACT   OF  MARCH  3,  1887. 

by  the  act  of  March  3,  1887.1     The  first  section  of  the  last- 
mentioned  act  reads  as  follows  :  — 

*'  The  circuit  courts  of  the  United  States  shall  have  original  cog- 
nizance, concurrent  with  the  courts  of  the  several  States,  of  all 
suits  of  a  civil  nature  at  common  law  or  in  equity,  when  the  matter 
in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  two  thousand  dollars,  and  arising  under  the  Constitution 
and  laws  of  the  United  States,  or  treaties  made  or  which  shall 
be  made  under  their  authority,  or  in  which  controversy  the  United 
States  are  plaintiffs  or  petitioners,  or  in  which  there  shall  be  a  con- 
troversy between  citizens  of  different  States,  in  which  the  matter 
in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  aforesaid,  or  a  controversy  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States,  or  a  con- 
troversy between  citizens  of  a  State  and  foreign  State's  citizens 
or  subjects." 

The  second  section  makes  a  beneficial  change  by  confining 
the  right  of  removal  to  the  defendants,  —  with  an  exception 
to  be  hereafter  noted,  —  and  not  allowing  it  to  be  exercised 
on  the  ground  of  citizenship  unless  all  the  parties  on  one 
side  —  when  ranged  according  to  their  respective  interests, 
regardless  of  their  position  on  the  record  —  are  of  different 
States  from  the  parties  on  the  other  side.^  The  same  section 
also  provides  that  ''  when  there  is  a  separable  controversy 
which  is  wholly  between  citizens  of  different  States  which  can 
be  fully  determined  as  between  them,  then  either  one  or 
more  of  the  defendants  actually  interested  in  such  contro- 
versy may  remove  said  suit  into  the  Circuit  Court  of  the 
United  States  for  the  proper  district."  ^  Hence,  while  there 
can  be  no  removal  of  a  controversy  on  account  of  the  char- 
acter of  the  parties,  unless  all  on  one  side  are  of  a  differ- 
ent State  from  those  on  the  other,  yet  if  this  condition  is 
fulfilled  as  to  a  separable  controversy  the  entire  cause  may 

1  See  the  Canal  &  Claiborne  Streets  R.  R.  Co.  v.  Hart,  114  U.  S.  654. 

2  Removal  Cases,  100  U.  S.  457;  Barney  v.  Latham,  103  Id.  205,  216; 
Blake  v.  McKim,  103  Id.  336,  339. 

8  See  Jefferson  v.  Driver,  117  U.  S.  272;  Sloane  y.  Anderson,  Id.  275; 
Carson  v.  Hyatt,  118  Id.  279. 


SEPARABLE  CONTROVERSIES. 


1096 


be  taken  to  the  Circuit  Court.  Such  was  the  construction 
given  to  the  analogous  clause  in  the  act  of  1875,  in  Barney 
V.  Latham  ;  ^  and  the  language  of  the  act  of  1887  is  identical, 
except  in  limiting  the  right  of  removal  to  the  defendants. 

To  constitute  a  separable  controversy  it  must  grow  out  of 
or  relate  to  a  distinct  demand  or  cause  of  action  ;  and  one 
or  more  of  the  defendants  in  a  joint  suit,  whether  ex  con- 
tractu or  ex  delicto^  cannot  by  severing  in  their  pleading,  and 
alleging  that  they  are  citizens  of  another  State,  acquire  the 
right  of  removal,  although  the  cause  of  action  is  joint  and 
several,  and  the  plaintiff  might  have  proceeded  severally 
against  each.^  Joint  trespassers  or  tort-feasors  may  be  sued 
severally,  biit  inasmuch  as  the  demand  grows  out  of  the  same 
act,  there  is  no  separable  controversy;  and  if  the  plaintiff 
chooses  to  unite  them  all  as  defendants,  none  of  them,  though 
domiciled  in  another  State,  can  transfer  the  cause.^ 

In  Starin  v.  New  York,*  the  suit  was  instituted  to  prevent 
what  was  alleged  to  be  a  concerted  attempt  by  the  defend- 
ants to  infringe  the  complainant's  exclusive  right  of  ferriage ; 
and  it  was  held  that  though  each  of  them  might  have  been 
sued  severally,  there  was  "but  a  single  cause  of  action," 
namely,  "  the  violation  of  the  exclusive  ferry  rights  of  the 
plaintiff  by  the  united  efforts  of  all  the  defendants."  The 
case  was  therefore  within  the  rule  established  in  The  Louis- 
ville &  Nashville  R.  R.  v.  Ide,^  that  a  separate  defence  by 
one  defendant  in  a  joint  suit  against  him  and  others  upon  a 
joint  or  several  cause  of  action  does  not  create  a  separable 
controversy,  so  as  to  entitle  that  defendant,  though  the  ne- 
cessary citizenship  exists  as  to  him,  to  a  removal  of  the  cause 
under  the  second  clause  of  section  2  in  the  act  of  1875. 

When,  however,  the  plaintiff,  by  erroneously  uniting  dis- 
tinct causes  of  action  in  the  same  proceeding,  brings  a  de- 
fendant into  the  State  court  who  might  have  removed  the 

1  103  U.  S.  205,  212. 

2  Pirie  V.  Tvedt,  115  U.  S.  41 ;  Louisville  &  Nashville  R.  R.  Co.  v.  Ide, 
114  Id.  52;  Sloane  v.  Anderson,  117  Id.  275. 

»  Thorn  Wire  Hedge  Co.  v.  Fuller,  122  U.  S.  535. 
*  115  U.  S.  248.  6  114  u.  S.  52. 


1096  REMOVAL  FOR   PREJUDICE 

cause  had  he  been  sued  alone,  he  is  as  much  entitled  to  exer- 
cise the  right  as  if  such  were  the  case ;  and  the  plaintiff  can- 
not allege  that  the  defendant  should  have  demurred  instead 
of  asking  for  a  removal,  because  the  fault  of  pleading  is  the 
plaintiff's,  and  he  must  submit  to  the  consequences  of  his 
mistake.  It  has  nevertheless  been  decided  that  if,  from  the 
nature  of  the  cause  and  the  diversity  of  the  interests  involved, 
it  cannot  properly  be  considered  or  determined  as  a  whole  by 
the  Circuit  Court,  the  removal  may  be  limited  to  so  much  of 
it  as  is  separable  and  concerns  the  parties  who  desire  the 
transfer,^  notwithstanding  the  delay  of  justice  to  the  remain- 
ing litigants,  who,  owing  to  the  entangled  nature  of  the  con- 
troversy, may  be  compelled  to  wait  for  years  on  the  action  of 
the  federal  courts  before  they  can  proceed  in  the  State  tribu- 
nal, and  then  undergo  a  like  probation  there. 

The  act  of  1887  also  provides  that  where  "  there  is  a  con- 
troversy between  a  citizen  of  the  State  where  the  suit  is 
brought  and  a  citizen  of  another  State,  smj  defendant  being 
such  citizen  of  another  State  may  remove  such  suit  into 
the  Circuit  Court  for  the  proper  district,  at  any  time  be- 
fore the  trial  thereof,  when  it  shall  be  made  to  appear  to 
the  said  Circuit  Court  that  from  prejudice  or  local  influence 
he  will  not  be  able  to  obtain  justice  in  such  State  court,  or  in 
any  other  State  court  to  which  the  defendant  may  under  the 
laws  of  the  State  have  the  right,  on  account  of  such  prejudice 
or  local  influence,  to  remove  such  cause." 

A  like  privilege  was  conferred  on  the  plaintiff  by  the  act 

1  The  Union  Pacific  R.  R.  Co.  v.  The  City  of  Kansas,  115  U.  S.  1,  25. 

In  this  instance  proceedings  were  instituted  before  the  mayor  of  a 
city  and  a  jury  for  widening  a  street,  and  to  ascertain  the  value  of  the 
land  taken,  and  assess  the  benefits  and  damages.  All  the  owners  of  the 
adjacent  land,  including  the  railroad  company,  were  made  parties,  and 
the  Supreme  Court  held  that  the  railway  company,  which  was  technically 
a  citizen  of  another  State,  might  require  that  the  compensation  they  were 
entitled  to,  and  how  much  they  ought  to  pay,  should  be  determined 
by  a  federal  tribunal,  although  the  other  owners,  who  were  citizens  of 
Kansas,  would  have  to  await  the  termination  of  a  proceeding  in  which 
they  took  no  part,  and  might  be  prejudiced  without  a  hearing  by  the 
result. 


OR  LOCAL  INFLUENCE. 


1097 


of  March  2,  1869,  and  section  639  of  the  Revised  Statutes, 
sub-division  3,  and  may  still  be  exercised ;  but  the  act  of 
1887  directs  that  the  Circuit  Court  shall,  on  application  of 
the  other  party,  inquire  into  the  truth  of  the  said  affidavit, 
and  the  grounds  thereof ;  and  unless  it  shall  appear  to  the 
satisfaction  of  the  said  court  that  said  party  will  not  be  able 
to  obtain  justice  in  said  State  court,  remand  the  cause. 

As  the  law  stood  under  section  639  of  the  Revised  Stat- 
utes, prior  to  the  act  of  1887,  there  could  be  no  removal  of  a 
cause  on  the  ground  of  local  prejudice,  unless  all  the  parties 
on  one  side  were  citizens  of  different  States  from  those  of  the 
other,  and  the  party  opposed  to  him  who  asked  for  the  re- 
moval was  a  citizen  of  the  State  in  which  the  suit  was 
brought.!  Whether  this  rule  is  altered  by  the  change  in  the 
phraseology  of  the  act  of  1887  must  be  left  to  conjecture 
until  the  point  is  ascertained  by  a  judicial  decision. 

Where  an  assignment  is  made  colorably  for  the  purpose  of 
giving  the  federal  tribunals  jurisdiction,  the  suit  may  be  dis- 
missed or  remanded,  under  section  5  of  the  act  of  March  3, 
1875,  whenever  the  fact  is  made  to  appear .^  But  an  allegation 
that  an  instrument  under  which  one  or  more  of  the  plaintiffs 
or  defendants  claim  was  collusively  executed  to  keep  the 
cause  in  the  State  courts,  or  prevent  it  from  coming  under 
the  grant  of  judicial  power  to  the  United  States,  will  not  au- 
thorize the  Circuit  Court  to  take  cognizance  of  the  suit  origi- 
nally, or  by  removal ;  and  relief  can  only  be  had  through  an 
application  to  the  State  court  to  vacate  the  assign  men  t.^ 

When  the  removal  is  not  asked  on  the  ground  of  prejudice 
or  local  influence,  the  petition  must,  agreeably  to  the  act  of 
1887,  be  filed  at  or  before  the  time  the  defendant  is  required 
by  the  laws  of  the  State,  or  the  rule  of  the  State  court,  to 
answer  or  plead  to  the  declaration  or  complaint,  —  thus  sub- 


1  Jefferson  v.  Driver,  117  U.  S.  272;  Cambria  Iron  Co.  v.  Ashburn, 
118  Id.  54,  58-,  Bible  Society  v.  Grove,  101  Id.  649. 

2  Barney  u.  Baltimore,  6  Wallace,  280;  Bernard's  Township  v.  Steb- 
bins,  109  U.  S.  341,  354;  Little  v.  Giles,  118  Id.  596. 

^  Provident  Savings  Life  Insurance  Society  v.  Ford,  114  U.  S.  635; 
Oakley  v.  Goodman,  118  Id.  43. 


1098  ORIGINAL  JURISDICTION   AND  REMOVAL 

stituting  a  definite  rule  for  the  uncertain  period  prescribed 
in  the  prior  law. 

A  want  of  jurisdiction  over  the  cause  cannot  be  remedied 
by  the  subsequent  course  of  events ;  but  it  is  enough,  as  it 
regards  the  parties,  that  jurisdiction  should  exist  at  the  time 
the  judgment  is  pronounced,  although  the  suit  was  irregu- 
larly brought  in  the  first  instance.^  If,  therefore,  all  the  par- 
ties on  either  side  are  citizens  of  different  States  from  those 
on  the  other  when  the  time  arrives  for  final  judgment,  it  may 
be  valid,  although  the  fact  was  otherwise  at  the  commence- 
ment of  the  action.2 

1  Conolly  V.  Taylor,  2  Peters,  564;  The  Pacific  R.  R.  Co.  v.  Ketchum, 
101  U.  S.  289,  298. 

2  See  Pacific  R.  R.  Co.  v.  Ketchum. 

"  The  bill  is  filed  in  the  court  of  the  United  States,  sitting  in  Ken- 
tucky, by  aliens  and  by  a  citizen  of  Pennsylvania.  The  defendants  are 
citizens  of  Kentucky,  except  one  who  is  a  citizen  of  Ohio,  on  whom  pro- 
cess was  served  in  Ohio.  The  jurisdiction  of  the  court  cannot  be  ques- 
tioned, so  far  as  respects  the  alien  plaintiffs.  As  between  the  citizens  of 
Pennsylvania  and  of  Ohio,  neither  of  them  being  a  citizen  of  the  State  in 
which  the  suit  was  brought,  the  court  exercise  no  jurisdiction.  Had  the 
cause  come  on  for  a  hearing  in  this  state  of  parties,  a  decree  could  not 
have  been  made  in  it  for  the  want  of  jurisdiction.  The  name  of  the 
citizen  plaintiff,  however,  was  struck  out  of  the  bill  before  the  cause  was 
brought  before  the  court;  and  the  question  is,  whether  the  original  de- 
fect was  cured  by  this  circumstance,  —  whether  the  court,  having  juris- 
diction over  all  the  parties  then  in  the  cause,  could  make  a  decree? 

"  The  counsel  for  the  defendants  maintain  the  negative  of  this  ques- 
tion. They  contend  that  jurisdiction  depends  on  the  state  of  the  parties 
at  the  commencement  of  the  suit;  and  that  no  subsequent  change  can 
give  or  take  it  away.  They  say  that  if  an  alien  becomes  a  citizen  pend- 
ing the  suit,  the  jurisdiction  which  was  once  vested  is  not  divested  by 
this  circumstance.  So,  if  a  citizen  sue  a  citizen  of  the  same  State,  he 
cannot  give  jurisdiction  by  removing  himself  and  becoming  a  citizen  of 
a  different  State.  This  is  true ;  but  the  court  does  not  understand  the 
principle  to  be  applicable  to  the  case  at  bar.  Where  there  is  no  change 
of  party,  a  jurisdiction  depending  on  the  condition  of  the  party  is  gov- 
erned by  that  condition  as  it  was  at  the  commencement  of  the  suit.  The 
court,  in  the  first  case,  had  complete  original  jurisdiction;  in  the  last,  it 
had  no  jurisdiction,  either  in  form  or  substance.  But  if  an  alien  should 
sue  a  citizen,  and  should  omit  to  state  the  character  of  the  parties  in  the 
bill,  though  the  court  could  not  exercise  its  jurisdiction  while  this  defect 


AS   AFFECTED   BY   CITIZENSHIP.  1099 

To  give  the  right  of  removal  under  the  act  of  1875,  and  as 
the  law  now  stands,  the  requisite  citizenship  must  neverthe- 
less exist  when  the  suit  is  brought  as  well  as  when  the  peti- 
tion is  filed  ;  and  if  at  either  period  any  party  on  the  one  side 
of  the  controversy  is  of  the  same  State  as  a  party  on  the  other 
side,  the  application  will  be  refused  or  the  cause  remanded.^ 
The  law  is  so  far  different  as  regards  removals  for  prejudice  or 
local  influence  that  the  fulfilment  of  the  requisite  conditions 
after  action  brought  and  before  trial  may  confer  the  right 
although  it  did  not  exist  when  the  suit  was  instituted.^  So 
the  removal  of  a  separable  controversy  depends  on  the  relations 
of  the  parties  when  the  application  is  made  ;  and  if  the  case 
is  then  within  the  statute  it  is  immaterial  that  the  petitioner 
was  originally  joined  with  other  persons  who  were  from  the 
same  State  as  one  or  more  of  the  opposite  parties,  and  the 
cause  could  not  have  been  removed  until  their  connection 
with  it  had  ceased.^  So  the  removal  may  take  place,  al- 
though the  right  of  action  did   not  exist  at  common  law, 

in  the  bill  remained,  yet  it  might,  as  is  every  day's  practice,  be  corrected 
at  any  time  before  the  hearing ;  and  the  court  would  not  hesitate  to  de- 
cree in  the  cause. 

"  So  in  this  case.  The  substantial  parties  plaintiffs,  those  for  whose 
benefit  the  decree  is  sought,  are  aliens;  and  the  court  has  original  juris- 
diction between  them  and  all  the  defendants.  But  they  prevented  the 
exercise  of  this  jurisdiction  by  uniting  with  themselves  a  person  between 
whom  and  one  of  the  defendants  the  court  cannot  take  jurisdiction. 
Strike  out  his  name  as  a  complainant,  and  the  impediment  is  removed  to 
the  exercise  of  that  original  jurisdiction  which  the  court  possessed  be- 
tween the  alien  plaintiffs  and  all  the  citizen  defendants.  We  can  per- 
ceive no  objection,  founded  in  convenience  or  in  law,  to  this  course." 
Conolly  V.  Taylor,  2  Peters,  566. 

1  Gibson  v.  Bruce,  108  U.  S.  561;  Houston  &  Texas  R.  R.  Co.  v.  Shir- 
ley, 111  Id.  358;  Mansfield,  Cold  Harbor,  &  Lake  Michigan  R.  R.  Co.  v. 
Swan,  Id.  370. 

2  Hess  V.  Reynolds,  113  U.  S.  73,  81. 

3  Yulee  V.  Vose,  99  U.  S.  539.  In  this  instance  a  citizen  of  New  York 
proceeded  in  her  courts  against  certain  persons,  who  were  also  citizens  of 
New  York,  and  Yulee,  a  citizen  of  Florida.  The  case  went  to  final  judg- 
ment against  the  other  defendants,  but  a  new  trial  was  granted  as  to 
Yulee,  and  it  was  held  that  he  thereby  acquired  a  right  to  transfer  the 
record  to  the  Circuit  Court  of  the  United  States. 

VOL.  II.  —  29 


1100  THE  RIGHT  OF  REMOVAL  CANNOT  BE 

and  the  statute  which  confers  it  provides  that  the  State 
courts  "  shall  have  exclusive  jurisdiction  of  suits  brought  to 
carry  it  into  effect."  Such  a  condition  is  invalid  as  tending 
to  frustrate  the  intention  of  the  Constitution  to  provide  an 
impartial  tribunal  where  there  is  reason  to  apprehend  that 
the  local  tribunals  will  favor  some  of  the  parties  to  the  ex- 
clusion of  others  who  come  from  different  States.^  In  this 
instance  the  plaintiff,  who  was  a  citizen  of  Illinois,  brought  a 
suit  in  Wisconsin,  under  letters  of  administration  granted  in 
that  State,  to  recover  damages  for  the  death  of  his  wife,  ow- 
ing to  the  negh'gence  of  a  railroad  company  which  had  been 
chartered  by  both  States  ;  and  it  was  held  that  he  might  re- 
move the  cause  to  the  Circuit  Court  of  the  United  States, 
although  the  action  was  founded  on  a  Wisconsin  statute 
which  provided  that  such  suits  should  be  "  brought  in  some 
court  established  under  the  Constitution  and  laws  of  the 
State."  2 

1  The  Railroad  Co.  v.  Whitton,  13  Wallace,  270. 

2  "  As  to  the  limitation  to  the  State  courts  of  the  remedy  given  by  the 
statute  of  Wisconsin,  —  that  statute,  after  declaring  a  liability  by  a  person 
or  a  corporation  to  an  action  for  damages  when  death  ensues  from  a  wrong- 
ful act,  neglect,  or  default  of  such  person  or  corporation,  contains  a  proviso 
that  '  such  action  shall  be  brought  for  a  death  caused  in  this  State,  and  in 
some  court  established  by  the  Constitution  and  laws  of  the  same.'  This 
proviso  is  considered  by  the  counsel  of  the  defendant  as  in  the  nature 
of  a  condition,  upon  a  compliance  with  which  the  remedy  given  by  the 
statute  can  only  be  enforced.  It  is  undoubtedly  true  that  the  right  of  ac- 
tion exists  only  in  virtue  of  the  statute,  and  only  in  cases  where  the  death 
was  caused  within  the  State.  .  .  .  But  when  death  does  thus  ensue  from 
any  of  these  causes,  the  relatives  of  the  deceased  named  in  the  statute  can 
maintain  an  action  for  damages.  The  liability  within  the  conditions  speci- 
fied extends  to  all  parties  through  whose  wrongful  acts,  neglect,  or  default 
death  ensues ;  and  the  right  of  action  for  damages  occasioned  thereby  is 
possessed  by  all  persons  within  the  description  designated.  In  all  cases 
where  a  general  right  is  conferred,  it  can  be  enforced  in  any  federal 
court  within  the  State  having  jurisdiction  of  the  parties.  It  cannot  be 
withdrawn  from  the  cognizance  of  such  federal  court  by  any  provision  of 
State  legislation  that  it  shall  only  be  enforced  in  a  State  court.  The 
statutes  of  nearly  every  State  provide  for  the  institution  of  numerous 
suits,  such  as  for  partition,  foreclosure,  and  the  recovery  of  real  property 
in  particular  courts,  and  in  the  counties  where  the  land  is  situated  ;  yet 


CIRCUMSCRIBED  BY   STATE  LEGISLATION.  1101 

The  rules  governing  the  right  of  removal  are  so  intricate  as 
to  perplex  skilful  practitioners  and  the  courts,  and  necessitate 
numerous  journeys  up  and  down  the  judicial  staircase  for  the 
determination  of  points  that  are  foreign  to  the  merits  of  the 
cause,  attended  with  a  delay  or  failure  of  justice  which  coun- 
terbalance any  good  that  may  arise  from  the  impartiality  of 
the  federal  courts.  I  may  add  that  no  act  of  a  State  legis- 
lature conferring  exclusive  jurisdiction  on  a  probate  court  or 
other  tribunal  as  regards  the  settlement  or  distribution  of  es- 
tates after  death,  the  proof  of  wills,  or  the  compensation 
due  under  the  right  of  eminent  domain,  can  affect  the  juris- 
diction of  the  federal  courts  over  controversies  between 
citizens  of  different  States  ;  nor  will  the  argument  ab  incon- 
venienti,  founded  on  the  delay  and  expense  incident  to  such 
a  change  of  forum,  w^eigh  in  the  scales  in  determining  whether 
the  right  of  removal  exists  and  may  be  exercised.^ 

In  determining  whether  the  right  of  removal  exists,  the 
court  will  consider  how  the  parties  are  related  in  interest, 
rather  than  the  position  assigned  to  them  by  the  pleader,  and 

it  never  has  been  pretended  that  limitations  of  this  character  could  affect, 
in  any  respect,  the  jurisdiction  of  the  federal  court  over  such  suits  when 
the  citizenship  of  one  of  the  parties  was  otherwise  sufl&cient.  Whenever 
a  general  rule  as  to  property  or  personal  rights,  or  injuries  to  either  is 
established  by  State  legislation,  its  enforcement  by  a  federal  court  in  a 
case  between  proper  parties  is  a  matter  of  course,  and  the  jurisdiction  of 
the  court  in  such  case  is  not  subject  to  State  legislation,  llailway  Co.  v. 
Whitton,  13  Wallace,  270,  285. 

"In  Swedam  v.  Broadnax,  14  Peters,  67,  an  act  of  the  legislature  of 
Alabama  provided  that  the  estate  of  a  deceased  declared  to  be  insolvent 
should  be  distributed  by  the  executors  or  administrators  according  to  the 
provision  of  the  act,  and  that  no  suit  or  action  should  be  commenced  or 
sustained  against  any  executor  or  administrator  after  the  estate  had  been 
declared  to  be  insolvent,  except  in  certain  cases.  But  this  court  held,  in 
a  case  not  thus  excepted,  that  the  insolvency  of  the  estate  judicially  de- 
clared under  the  act  was  not  sufficient  in  law  to  abate  a  suit  in  a  circuit 
court  of  the  United  States  by  a  citizen  of  another  State  against  a  citizen 
of  Alabama."  Raih-oad  Co.  v.  Whitton,  13  Wallace,  270,  291;  see  Union 
Bank  of  Tennessee  v.  Jolly's  Administrators,  18  How.  506;  Payne  o. 
Hook,  7  Wallace,  425,  to  the  same  effect. 

1  Gaines  v.  Fuentes,  92  U.  S.  10;  Ellis  v.  Davis,  109  Id.  485;  Hess  v. 
Reynolds,  113  Id.  73,  77. 


1102  JURISDICTION,   ORIGINAL, 

if  all  the  persons  who  are  entitled  to  redress  are  of  a  different 
State  from  the  persons  against  or  through  whom  it  is  sought, 
the  cause  may  be  removed,  although  some  of  the  latter  stand 
on  record  as  plaintiffs  and  others  as  defendants.^ 

It  may  be  inferred  from  the  decisions  that  the  right  to  take 
jurisdiction  originally,  and  the  right  to  acquire  it  by  removal, 
or  under  a  writ  of  error  or  appeal,  are  not  necessarily  gov- 
erned by  the  same  rules.  In  the  first  instance  it  is  enough 
that  a  federal  element  is  potentially  involved,  because  the 
plaintiff  cannot  know  what  course  the  defendant  will  take 
until  after  the  case  is  brought  into  court.  In  the  second, 
the  Circuit  Court  may  inquire  whether  the  record  or  tes- 
timony actually  presents  a  case  under  the  Constitution  or 
laws  of  the  United  States,  and  remand  the  cause  if  such  is 
not  the  fact.  It  is  essential,  in  the  third,  that  a  federal  ques- 
tion should  not  only  have  arisen,  but  have  been  decided 
adversely  to  the  party  who  wishes  to  have  the  judgment 
reviewed ;  and  unless  this  appears  affirmatively  the  appeal 
will  be  dismissed.2 

1  See  the  Removal  Cases,  100  U.  S.  457;  Harter  v.  Kernochan,  103  Id. 
562;  Carson  v.  Hyatt,  118  Id.  279,  286;  Mills  v.  Brown,  16  Peters,  525; 
Lawler  v.  Walker,  14  Howard,  152;  Railroad  Co.  v.  Buck,  4  Wallace,  177. 

2  The  following  citation  from  the  judgment  in  Stone  v.  Sargent,  129 
Mass.  503,  gives  an  instructive  summary  of  the  authorities  and  the 
conclusions  to  which  they  lead,  but  it  is  now  established  that  the  State 
court  cannot  inquire  into  the  facts,  although  it  may  consider  whether  the 
petition  is  good  in  point  of  law,  and  proceed  to  judgment  if  the  paper 
does  not  "  on  its  face  show  "  that  the  motion  should  be  granted.  Stone 
V.  South  Carolina,  117  U.  S.  430;  Carson  v.  Hyatt,  118  Id.  279,  289;  Bur- 
lington R.  R.  Co.  V.  Dunn,  122  Id.  512;  Amy  y.  Manning,  144  Mass.  153. 

"  As  appears  by  the  authorities  cited  by  .the  learned  counsel  for  the 
defendant,  if  the  case  is  within  the  act  of  Congress,  and  the  proper  pe- 
tition, affidavit,  and  surety  are  filed  in  the  State  court  the  Circuit  Court 
of  the  United  States  takes  jurisdiction  of  the  cause,  although  the  State 
court  omits,  or  even  refuses,  to  make  any  order  for  its  removal.  In  other 
words,  the  jurisdiction  of  the  federal  court  over  a  case  in  which  the  con- 
ditions of  the  act  of  Congress  have  been  complied  with  cannot  be  de- 
feated by  any  action  or  omission  of  the  State  court. 

"  On  the  other  hand,  it  is  the  duty  of  the  State  court,  before  relin- 
quishing jurisdiction  of  a  cause  once  lawfully  brought  before  it,  and 
discharging  that  cause  from  its  own  docket,  to  be  satisfied  that  there  has 


BY  REMOVAL,  AND  ON  APPEAL.         1103 

been  a  compliance  with  those  conditions.  If  the  highest  court  of  the 
State  errs  in  holding  that  the  petitioner  is  not  entitled  to  remove  the 
cause,  its  judgment  may  be  revised  and  reversed  on  writ  of  error  by 
the  Supreme  Court  of  the  United  States,  and  all  proceedings  had  in  the 
courts  of  the  State,  after  due  application  for  a  removal,  may  be  ordered 
by  that  court  to  be  set  aside.  But  no  act  of  Congress,  and  no  adjudica- 
tion of  the  Supreme  Court  of  the  United  States  has  made  the  opinion  of 
the  State  court,  upon  the  question  whether  its  own  jurisdiction  must  be 
surrendered,  subordinate  to  the  opinion  of  any  Federal  tribunal  below 
the  Supreme  Court.  It  is,  to  say  the  least,  a  grave  matter  of  doubt 
whether  the  Circuit  Court  of  the  United  States,  in  such  a  case  as  this, 
could  issue  a  writ  of  mandamus  or  of  certiorari  to  the  State  court;  and  if 
it  could  it  would  only  be  when  no  copy  of  the  record  had  been  filed  in  the 
Circuit  Court,  and  to  obtain  such  a  copy  for  the  purpose  of  guiding  its 
own  proceedings,  and  not  to  restrain  or  control  the  judicial  action  of  the 
State  court.  Ex  parte  Turner,  3  Wallace,  Jr.,  258;  Murray  v.  Patrie,  5 
Blatchford  C.  C.  343;  s.  c.  cited  6  Blatchford  C.  C.  382-386;  s.  c.  nom. 
Justices  V.  Murray,  9  Wallace,  274,  282,  note;  Hough  v.  Western  Trans- 
portation Co.,  1  Bissell,  425;  In  re  Cromie,  2  Id.  160;  Osgood  v.  Chicago, 
Danville,  and  Vincennes  R.  R.  Co.,  6  Id.  330 ;  United  States  v.  McKee, 
4  Dill.  1. 

"  In  Dillon  on  Removal  of  Causes  (2d  ed.),  77-79,  it  is  said  that  the 
Circuit  Court  of  the  United  States  has  the  power  to  protect  its  suitors  by 
injunction  against  a  judgment  rendered  in  the  State  court  after  a  proper 
application  to  remove  the  cause.  But  the  only  authority  there  cited  is 
French  v.  Hay,  22  Wallace,  250,  in  which  the  circumstances  were  very 
peculiar,  and  the  judgment  in  no  way  supports  the  position  of  the  learned 
author.  In  that  case  the  principal  cause  had  been  removed  without  ob- 
jection from  a  State  court  of  Virginia  into  the  Circuit  Court  of  the 
United  States,  and  the  State  court  of  Virginia  had  not  undertaken  to 
retain  jurisdiction  thereof.  The  injunction  issued  by  the  federal  court 
was  not  against  proceeding  with  the  original  suit  in  the  State  court  of 
Virginia,  but  against  prosecuting  a  new  suit,  commenced  in  the  courts 
of  another  State  after  the  right  of  removal  had  been  perfected  upon  a 
decree  rendered  in  the  State  court  of  Virginia  before  the  application  for 
removal.  The  judgment  is  limited  by  its  language,  as  well  as  by  the 
facts  before  the  court,  to  injunctions  to  stay  suits  commenced  after  the 
jurisdiction  of  the  federal  court  has  attached;  and  in  any  other  view 
would  be  inconsistent,  not  only  with  the  clear  terms  of  the  acts  of  Con- 
gress, but  with  earlier  and  later  decisions  of  the  Supreme  Court  of  the 
United  States.  U.  S.  St.  March  2,  1793,  §  5,  U.  S.  Rev.  Sts.  720;  Diggs 
V.  Wolcott,  4  Cranch,  179  ;  Watson  v.  Jones,  13  Wallace,  679,  738;  Haines 
V.  Carpenter,  91  U.  S.  254;  Dial  v.  Reynolds,  96  U.  S.  340.  See  also 
Bradley,  J.,  in  Live  Stock  Association  v.  Crescent  City  Co.,  1  Abbott 
U.  S.  388,  404,  407 ;  s.  c.  Slaughter  House  Case,  1  Woods,  21,  34,  37. 


1104  KEMOVAL  OF  CAUSES. 

'*  The  inconvenience  of  the  construction  for  which  the  defendant  con- 
tends may  be  made  more  apparent  by  applying  it  to  a  case  in  which  the 
amount  in  dispute  is  more  than  five  hundred  and  less  than  five  thousand 
dollars.  Such  a  case,  in  the  event  of  a  decision  in  the  highest  court  of 
the  State  against  a  right  claimed  under  the  act  of  Congress,  could  be 
taken  by  writ  of  error  to  the  Supreme  Court  of  the  United  States.  U.  S. 
Rev.  Sts.  §  709.  But  a  decision  of  the  Circuit  Court  of  the  United 
States  in  favor  of  such  a  right  could  not  be  re-examined  in  the  Supreme 
Court.  U.  S.  Rev.  Sts.  §  691,  U.  S.  St.  Feb.  16,  1875,  §  3.  So  that  the 
effect  would  be  to  make  the  decision  of  a  circuit  court  of  the  United 
States  paramount  to  the  deliberate  judgment  of  the  highest  court  of  the 
State. 

"  This  court  has  uniformly  held  that  any  court  of  the  Commonwealth, 
before  declining  the  further  exercise  of  jurisdiction  over  a  cause,  must 
consider  and  determine  whether  upon  the  record  and  papers  before  it, 
the  petitioner  has  brought  himself  within  the  acts  of  Congress;  and  that 
the  ruling  of  a  judge  of  this  court  or  of  the  Superior  Court  upon  that  ques- 
tion may  be  revised  in  the  full  bench  of  this  court  upon  bill  of  exceptions 
or  report  of  the  judge.  Commonwealth  v.  Casey,  12  Allen,  214;  Morton 
V.  Mutual  Ins.  Co.  105  Mass.  141;  Bryant  v.  Rich,  106  Mass.  180;  Flor- 
ence Sewing  Machine  Co.  v.  Grover  &  Baker  Co.,  110  Mass.  70;  Mahone 
V.  Manchester  &  Lawrence  R.  R.,  Ill  Mass.  72;  Galpin  v.  Critchlow,  112 
Mass.  339;  Gordon  v.  Green,  113  Mass.  259;  Du  Vivier  v.  Hopkins,  116 
Mass.  125;  New  York  Warehouse  Co.  v.  Loomis,  122  Mass.  431.  And 
notwithstanding  some  dicta  of  the  learned  justice  who  delivered  the 
opinion  in  Insurance  Co.  v.  Dunn,  19  Wallace,  214,  223,  having  an  op- 
posite tendency,  the  practice  of  this  court  in  this  regard  is  upheld  by 
many  decisions  of  the  Supreme  Court  of  the  United  States,  of  which  it 
will  be  sufficient  to  cite  a  few  of  the  more  recent. 

"  In  Florence  Sewing  Machine  Co.  v.  Grover  &  Baker  Co.,  110  Mass. 
70,  the  defendant  filed  a  petition  for  a  removal  of  the  case  into  the 
Circuit  Court  of  the  United  States  under  the  act  of  Congress  of  1867^ 
which  was  refused  by  a  justice  of  this  court,  upon  the  ground  that  the 
case  was  not  within  the  act;  and  upon  exceptions  to  such  refusal,  and  to 
his  rulings  at  the  subsequent  trial,  his  decision  was  affirmed  by  the  full 
court.  The  case  was  nevertheless  entered  in  the  Circuit  Court  of  the 
United  States,  and  a  motion  of  the  plaintiff  to  remand  it  was  overruled 
by  that  court.  1  Holmes  C.  C.  235.  But  the  Supreme  Court  of  the 
United  States,  on  a  writ  of  error  to  this  court,  affirmed  its  judgment, 
without  a  suggestion  that  there  was  any  irregularity  in  its  proceedings, 
or  that  it  had  lost  its  jurisdiction  of  the  case  by  the  entry  thereof  in  the 
Circuit  Court.     18  Wallace,  553. 

*'  So  in  Bryant  v.  Rich,  106  Mass.  180,  a  justice  of  the  Superior  Court 
declined  to  grant  a  petition  for  removal  under  the  same  act  of  Congress, 
on  the  ground  that  it  was  filed  too  late ;  and  exceptions  were  taken  to  his 


REMOVAL  OF  CAUSES.  1105 

decision  and  were  overruled  by  this  court.  The  Supreme  Court  of  the 
United  States,  upon  writ  of  error,  held,  in  the  words  of  Chief  Justice 
Waite,  that  the  transfer  was  properly  refused,  and  affirmed  the  judgment. 
Vannevar  v.  Bryant,  21  Wallace,  41.  A  similar  decision  was  made  upon 
a  writ  of  error  to  the  Supreme  Court  of  Iowa  in  Kailroad  Co.  v.  McKiuley, 
99  U.  S.  147. 

*'  In  Fashnacht  v.  Frank,  23  Wallace,  416,  an  alien,  whose  property  had 
been  ordered  by  a  decree  of  a  district  court  of  the  State  of  Louisiana  to 
be  sold,  at  the  suit  of  a  citizen  of  that  State  holding  a  mortgage  thereon, 
obtained  from  the  same  court  a  temporary  injunction,  which  upon  hearing 
was  dissolved,  and  afterwards  filed  a  petition,  under  the  act  of  Congress 
of  July  27,  1866,  for  the  removal  of  the  case  into  the  Circuit  Court  of  the 
United  States,  which  was  refused;  and  he  then  appealed  from  the  decree 
dissolving  the  injunction  to  the  Supreme  Court  of  Louisiana,  which 
affirmed  that  decree.  The  Chief-Justice  of  the  United  States,  in  deliver- 
ing the  judgment  of  the  Supreme  Court  dismissing  for  want  of  jurisdiction 
a  writ  of  error  to  the  State  court,  said  that  the  petition  for  removal  '  was 
at  once  very  properly  overruled,  for  the  reason  that  a  final  judgment  had 
already  been  rendered,'  and  that  the  appeal  to  the  Supreme  Court  of  the 
State  '  was  clearly  the  appropriate  remedy  for  the  correction  of  the  errors 
of  the  district  court  if  there  were  any.' 

"  In  another  case,  a  defendant's  petition  for  removal,  under  the  Judici- 
ary Act  of  1789,  which  alleged  the  citizenship  of  the  plaintiff  at  the  date 
of  the  petition,  but  not  at  the  time  of  the  commencement  of  the  action, 
was  for  that  reason  refused  by  the  Supreme  Court  of  N^ew  York,  and  its 
judgment  affirmed  in  the  Court  of  Appeals.  Pechner  v.  Phoenix  Ins.  Co., 
6  Lansing,  411,  and  65  N.  Y.  195.  The  case  was  taken  by  writ  of  error  to 
the  Supreme  Court  of  the  United  States,  and  it  was  there  argued  that  the 
compliance  with  the  conditions  of  the  act  of  Congress  ousted  the  Supreme 
Court  of  New  York  of  its  jurisdiction;  and  all  further  proceedings  therein 
were  void.  But  the  judgment  was  affirmed;  the  Chief -Justice  saying: 
'  This  right  of  removal  is  statutory.  Before  a  party  can  avail  himself  of 
it,  he  must  show  upon  the  record  that  his  is  a  case  which  comes  within 
the  provisions  of  the  statute.  His  petition  for  removal  when  filed  becomes 
part  of  the  record  in  the  cause.  It  should  state  facts  which,  taken  in  con- 
nection with  such  as  already  appear,  entitle  him  to  the  transfer.  If  he 
fails  in- this  he  has  not  in  law  shown  to  the  court  that  it  cannot  "  proceed 
further  with  the  cause. "  Having  once  acquired  jurisdiction,  the  court  may 
proceed  until  it  is  judicially  informed  that  its  power  over  the  cause  has 
been  suspended.'  The  court  had  to  take  the  case  as  made  by  the  party 
himself,  and  not  inquire  further.  If  that  was  not  sufficient  to  oust  the 
jurisdiction  there  was  no  reason  why  the  court  might  not  proceed  with  the 
cause.  95  U.  S.  183.  A  like  decision  was  made  where  petitions  under 
the  act  of  1867  contained  defective  allegations  of  the  citizenship  of  the 
adverse  party;  and  the  Chief -Justice  said:  '  Holding  as  we  do  that  a  State 


1106  REMOVAL  OF  CAUSES. 

court  is  not  bound  to  surrender  its  jurisdiction  upon  a  petition  for  removal 
until  at  least  a  petition  is  filed  which,  upon  its  face,  shows  the  right  of 
the  petitioner  to  the  transfer,  it  was  not  error  for  the  court  to  retain  these 
causes. '     Amory  v.  Amory,  95  U.  S.  186. 

"  In  the  very  recent  case  of  Meyer  v.  Construction  Co.,  100  U.  S.  457, 
a  defendant  in  an  inferior  court  of  the  State  of  Iowa  filed  a  petition  under 
the  act  of  Congress  of  March  3,  1875,  for  a  removal  of  the  cause  into  the 
Circuit  Court  of  the  United  States.  The  State  court  refused  the  petition 
because  one  of  the  two  sureties  on  the  bond  offered  was  an  attorney  of  the 
court,  who  was  forbidden  by  the  law  and  practice  of  Iowa  to  be  a  surety, 
and  because  the  petition  was  filed  too  late,  after  the  trial  had  begun.  The 
defendant,  notwithstanding,  obtained  from  the  clerk  a  copy  of  the  record, 
and  filed  it  in  the  Circuit  Court  of  the  United  States ;  and  that  court  over- 
ruled a  motion  of  the  plaintiff  to  remand  the  cause.  The  State  court, 
against  the  protest  of  the  defendant,  proceeded  with  the  cause,  and  en- 
tered a  final  decree  for  the  plaintiff,  and  tlie  defendant  appealed  therefrom 
to  the  Supreme  Court  of  the  State  which  affirmed  that  decree.  The  cause 
also  proceeded  in  the  Circuit  Court  of  the  United  States  and  there  resulted 
in  a  decree  for  the  defendant.  The  matter  was  brought  before  the  Supreme 
Court  of  the  United  States  by  writ  of  error  to  the  State  court  and  by 
appeal  from  the  decree  of  the  federal  court.  The  Supreme  Court  of  the 
United  States  held  that  the  cause  was  legally  removed^  because  one  of  the 
sureties  was  admitted  to  be  sufficient,  and  the  act  of  Congress  did  not 
require  more  than  one;  and  because,  upon  the  acts  appearing  on  the 
record,  the  trial  had  not  begun  when  the  petition  for  removal  was  filed; 
and  that  the  defendant  had  not,  by  taking  part  under  protest  in  the  sub- 
sequent proceedings  in  the  State  court,  waived  his  right  to  insist  that  the 
cause  had  been  so  removed. 

*'  The  Supreme  Court,  on  the  writ  of  error,  reversed  the  judgment  of 
the  Supreme  Court  of  Iowa  and  remanded  the  cause  to  that  court,  with 
instructions  to  reverse  the  decision  of  the  inferior  court  of  that  State,  and 
to  direct  that  court  to  proceed  no  further  with  the  suit;  and  on  the  appeal, 
reversed  the  decree  of  the  Circuit  Court  of  the  United  States  upon  its 
merits,  and  remanded  the  cause  for  further  proceedings  in  that  court. 
But  no  suggestion  was  made  that  the  State  court  had  no  authority,  for 
the  purpose  of  ascertaining  whether  it  should  retain  jurisdiction  of  the 
cause,  to  consider  whether  the  provisions  of  the  act  of  Congress  had  been 
complied  with.  On  the  contrary,  the  Chief-Justice,  in  delivering  judg- 
ment, clearly  implied  that,  if  the  sufficiency  of  the  surety,  or  the  citizen- 
ship of  either  party  had  been  denied,  in  point  of  fact  the  State  court  might 
have  inquired  into  it,  and  added:  *  We  fully  recognize  the  principle  here- 
tofore asserted  in  many  cases,  that  the  State  court  is  not  required  to  let 
go  its  jurisdiction  until  a  case  is  made  which,  upon  its  face,  shows  that 
the  petitioner  can  remove  the  cause  as  a  matter  of  right.'  " 


LECTURE   LI. 

The  State  Courts  are  not  bound  by  the  decisions  of  the  Federal  Courts  as 
to  Questions  arising  under  the  Local  Law,  and  beyond  the  Scope  of 
the  Powers  conferred  on  Congress.  —  Conflict  of  State  and  Fed- 
eral Jurisdiction,  and  its  Effect  on  the  Administration  of  Justice. 
—  Congress  cannot  regulate  the  purely  Internal  Commerce  of  a  State, 
nor  can  they  Modify  or  Repeal  the  Rules  laid  down  by  the  State 
Courts  with  regard  to  Matters  which  are  reserved  to  the  States.  — 
Power  claimed  and  exercised  by  the  Supreme  Court  of  the  United 
States  under  this  head.  —  Does  the  Legislative  Authority  of  the  Fed- 
eral Judiciary  over  Contracts  extend  beyond  that  of  Congress?  —  There 
are  in  many  States  as  to  certain  Subjects  two  different  Rules:  one  fol- 
lowed by  the  State,  the  other  by  the  Federal  Courts;  and  the  Result 
of  the  Cause  depends  on  the  Tribunal  where  the  Suit  is  brought.  — 
Is  the  Commercial  Law  of  the  Civilized  Nations  susceptible  of  being 
Reduced  to  a  common  Standard  ?  —  Authorities  bearing  on  this 
point. 

As  the  circle  of  federal  authority  widens,  and  each  year  in- 
creases the  scope  and  number  of  the  acts  of  Congress,  the 
doctrine  that  if  any  point  is  within  the  grant  of  judicial 
power  the  entire  case  follows,  will  tend  to  diminish  the  im^ 
portance  of  the  State  judiciary  and  throw  an  increasing 
amount  of  business  into  the  courts  of  the  United  States. 
Whether  such  a  result  will  conduce  to  the  public  good  must 
obviously  depend  on  the  character  and  ability  of  the  men 
who  sit  in  the  respective  tribunals;  and  we  may  believe 
that  if  the  States  persist  in  choosing  their  judges  for  short 
terms  of  years  by  a  popular  vote,  and  the  United  States  ad- 
here to  the  Constitutional  tenure  of  good  behavior,  an  increas- 
ing preference  will  be  shown  for  courts  where  the  judiciarj^ 
are  raised  above  party  prepossession  and  political  influence. 

Advantageous  as  our  dual  system  may  be  in  affording  an 
opportunity  for  comparison  and "  choice,  it  has  some  con- 
sequences that   cannot   be   pronounced   an   unmixed   good. 


1108  AUTHORITY  OF  FEDERAL  DECISIONS. 

Co-ordinate  tribunals,  which  have  no  common  head,  neces- 
sarily diverge,  even  when  administering  the  laws  of  the  same 
territor}^  —  a  truth  amply  verified  by  the  course  of  American 
jurisprudence.  Questions  growing  out  of  contracts  made  and 
to  be  performed  in  a  State  are  decided  by  the  national  court 
of  last  resort  not  in  accordance  with  the  unwritten  or  custom- 
ary law  of  the  State  where  they  originated,  as  expounded  by 
its  courts,  but  agreeably  to  some  theoretic  view  of  a  general 
commercial  law  which  does  not  exist,  and  is  not  to  be  found 
in  the  books.^  The  State  courts,  on  the  other  hand,  adhere 
to  their  own  precedents,  and  do  not  consider  themselves  en- 
titled to  impair  the  obligations  of  contracts  that  have  been 
made  in  reliance  on  the  principles  which  they  have  laid  down 
through  a  long  series  of  years.  The  result  is  a  conflict  of 
jurisdiction  which  there  are  no  means  of  allaying,  because  the 
Supreme  Court  of  a  State  and  the  Supreme  Court  of  the 
United  States  stand  as  to  such  matters  on  equal  ground. 
Neither  is  under  an  obligation  to  regard  the  decisions  of  the 
other  as  authoritative ;  and  as  a  writ  of  error  will  not  lie  on 
either  side,  both  are  as  independent  as  if  they  were  admin- 
istering different  systems  of  jurisprudence,  and  held  their 
offices  under  governments  having  no  common  bond.  DilSer- 
ent  rules  of  interpretation  are  consequently  applied  to  the 
same  contract  by  judges  sitting  in  the  same  town,  and  the 
result  of  the  suit  will  vary  with  the  court  in  which  it  is  insti- 
tuted, or  where  the  case  is  tried.^ 

^  See  Swift  v.  Tyson,  16  Peters,  1 ;  Cai-penter  v.  Providence  Insurance 
Co.,  Id.  495;  Miller  v.  Austin,  13  Howard,  218;  Dred  Scott  Case,  19  Id. 
393,  603;  Watson  v.  Tarpley,  18  Id.  521;  Gates  v.  National  Bank,  100 
U.  S.  245;  The  Railroad  Co.  v.  National  Bank,  102  U.  S.  14;  McBride  v. 
The  Farmers'  Bank,  26  N.  Y.  454;  Brooke  v.  New  York  R.  R.  Co.,  108 
Pa.  530,  535.     See  ante,  p.  442. 

2  "The  decisions  of  our  court  have  been  uniform  since  the  time  of 
Coddington  v.  Bay,  20  Johnson,  627,  where  it  was  determined  that  be- 
fore the  holder  of  a  note  can  acquire  a  better  title  to  it  than  the  person 
from  whom  he  received  it,  he  must  pay  a  present  valuable  consideration ; 
and  that  receiving  it  in  payment  of  an  antecedent  debt  is  not  such  a 
consideration.  Stalker  v.  McDonald,  6  Hill,  93 ;  Youngs  v.  Lee,  2  Ker- 
nan,  551.     And  we  must  follow  these  decisions,  although  they  are  in 


IN  THE  STATE  COURTS. 


1109 


Whether  a  recovery  shall  be  had  on  a  promissory  note 
which  has  been  taken  as  collateral  security  for  an  antece- 
dent debt,  against  a  maker  from  whom  it  was  obtained  by 
fraud,  is  thus  made  to  turn  in  New  York,  Pennsylvania  and 
Ohio,  not  on  any  settled  rule,  but  on  the  tribunal  by  which 
the  cause  is  heard ;  and  if  that  is  federal  the  plaintiff  will 
prevail,  if  it  is  local  the  defendant.^  Such  a  result  tends  to 
discredit  the  law,  and  shows,  what  might  have  been  antici- 
pated, that  judicial  legislation  will  rarely  lead  to  beneficial 
results  where  co-ordinate  tribunals  are  equally  entitled  to 
give  the  law,  and  the  legislature  is  powerless  to  prescribe 
the  rule,  or  to  declare  which  of  two  discordant  rules  shall 
prevail.  Agreeably  to  the  general  and  well-settled  doctrine, 
while  the  existence  of  a  debt  is  a  sufficient  cause  for  the 
transfer  of  property  as  a  means  of  security  or  payment,  the 
creditor  will  not  be  a  purchaser  for  value  unless  he  enters 
into  an  agreement  for  forbearance,  or  changes  his  position 
for  the  worse  in  some  other  way.^  There  seems  to  be  no 
reason  why  the  negotiation  of  a  note  or  bill  should  differ  in 
this  respect  from  other  transfers,  or  confer  a  better  title  on 
the  indorsee  than  that  of  the  indorser.  A  consideration  is 
necessary  to  the  validity  of  a  promissory  note  under  the  doc- 
trines both  of  the  commercial  and  common  law,  and  if  it  is 
wanting  between  the  original  parties,  a  subsequent  holder 
ought  not  to  recover  unless  he  gave  or  surrendered  some- 
thing in  the  belief  that  the  note  was  good  in  the  hands  of 
the  payee.^ 

Such  was  the  generally  received  opinion  at  the  beginning 
of  this  century,  and  down  to  a  comparatively  recent  period* 


conflict  with  that  of  the  federal  court  in  Swift  v.  Tyson."  McBride  v. 
The  Farmers'  Bank,  26  N.  Y.  450,  454.  See  Brooke  v.  New  York,  Lake 
Erie,  &  Western  R.  R.  Co.,  108  Pa.  530. 

1  The  Railroad  Co.  v.  The  National  Bank,  102  U.  S.  29.  See  ante, 
442. 

»  Morse  v.  Godfrey,  3  Story,  364;  Petrie  v.  Clark,  11  S.  &  R.  377; 
Garrard  v.  The  Railroad  Co.,  29  Pa.  St.  154,  160;  Ashton's  App.,  73  Pa. 
153,  163;  2  Lead.  Cas.  in  Eq.  (4th.  Am  ed.)  83. 

8  2  Am.  Lead.  Cas.  (5th  ed.)  227. 


1110  CONFLICT  OF   STATE 

It  still  prevails  in  the  courts  of  last  resort  of  the  most  popu- 
lous and  commercial  States  of  the  American  Union  ;  and 
judging  from  the  decision  of  the  House  of  Lords  in  Currie 
V,  Misa,i  has  undergone  little  change  in  England.^  There 
was,  nevertheless,  an  increasing  tendency  to  regard  nego- 
tiable instruments  as  being  what  Lord  Mansfield  had  de- 
clared of  Bank  of  England  notes,^  —  not  merely  contracts, 
but  money,  and  like  it  capable  of  passing  from  hand  to  hand, 
and  becoming  the  property  of  any  man  who  took  them  in 
good  faith,  however  gross  the  misconduct  of  the  person  who 
made  the  transfer.  Such  virtually  was  the  view  taken  by 
Story,  J.,  in  Swift  v.  Tyson,*  and  it  was  adopted  in  Massa- 
chusetts and  Connecticut,  and  measurably  in  Vermont.  It 
followed  that  if  a  note  which  had  been  obtained  feloniously, 
or  by  fraud,  was  endorsed  as  a  security  for  a  debt,  the  cred- 
itor might  not  onl}'-  withhold  it  from  the  rightful  owner,  but 
if  the  latter's  name  appeared  on  the  paper  as  drawer  or  en- 
dorser compel  him  to  pay  the  amount  in  full  by  suit. 

The  change,  which  seems  to  have  originated  in  the  dicta 
of  Mr.  Justice  Story,  was  regarded  as  an  innovation  in  New 
York  and  Pennsjdvania,  where  the  courts  stood  fast  in  the 
ancient  ways.  It  can  scarcely  be  said  to  have  been  made  in 
Swift  V.  Tyson,  because  the  note  was  taken  in  payment,  and 
the  extinguishment  of  one  demand  is  a  valuable  considera- 
tion for  the  creation  of  another ;  and  the  Supreme  Court  was 
almost  as  tardy  in  following  the  line  marked  out  for  the  ne- 
gotiation of  bills  and  notes,  as  they  were  in  accepting  the 
extension  given  to  admiralty  jurisdiction  in  De  Lovio  v.  Boit.^ 
In  Goodman  v.  Simonds,^  and  recently  in  Gates  v.  The  Na- 

1  L.  R.  1  App.  554,  565. 

2  See  De  la  Chaumette  v.  Bank  of  England,  29  B.  &  C.  208;  Keene  v. 
Beard,  8  C.  B.  (n.  s.)  381;  Byles  on  Bills  (10  ed.),  39;  Lennard's  App., 
2  C.  R.  840,  843,  and  the  able  dissenting  opinion  of  Lord  Coleridge  in 
Currie  v.  Misa,  L.  R.  10  Ex.  153,  165,  for  the  effect  of  the  opposite  doc- 
trine in  facilitating  fraud  and  breaches  of  trust. 

8  See  Miller  v.  Rice,  1  Burrow,  452.  -*  16  Peters,  1. 

5  See  ante,  p.  1006. 

^  20  Howard,  343.  That  such  was  the  ratio  decidendi  in  Goodman  v. 
Simonds  is  shown  by  the  following  extract  from  the  judgment :  — 


AND  FEDERAL  JURISDICTION.  1111 

tional  Bank,^  the  decision  was  based  on  the  existence  of  an 
agreement  for  forbearance  ;  but  when  the  point  arose  in  The 
Railroad  Co.  v.  The  National  Bank,^  taking  a  promissory  note 
as  security  for  a  pre-existing  debt  was  held  to  be  a  purchase 
for  value,  contrary  to  a  long  line  of  precedents  in  New 
York,  where  the  instrument  was  made  and  negotiated.  The 
court  treated  these  decisions  as  merely  evidence,  and  not 
the  law,  and  turned  for  proof  to  Daniel  on  Negotiable 
Instruments,  Story  on  Promissory  Notes,  and  Parsons  on 
Notes  and  Bills,  and  the  decisions  collated  by  these  authors 
from  various  quarters,  which  can  hardly  weigh  in  tiie  scale, 
as  regards  the  lex  loci  contractus^  with  judgments  delivered 
nearer  home. 

The  reason  given  was  that  the  law  of  contracts,  including 
guaranties,  policies  of  insurance,  bills  of  lading,  and  sales  of 
chattels,  as  well  as  negotiable  instruments,^  is  a  part  of  the 
general  commercial  law,  and  depends,  not  on  the  customary 
law  of  the  locality,  but  on  general  principles  gathered  from 
writers  on  jurisprudence,  and  decisions  in  every  part  of  the 
civilized  world.  Looking  at  the  question  in  this  aspect,  it 
might  seem  that  the  opinions  of  Kent,  Walworth,  and  other 
eminent  men  who  have  filled  the  bench  in  New  York,  are 
entitled  to  as  much  weight  —  considered  merely  as  jurists, 

*'  When  the  settlement  was  made  the  new  notes  were  given  in  pay- 
ment of  the  prior  indebtedness,  and  the  collaterals  previously  held  were 
surrendered  to  the  defendant,  and  the  time  of  payment  was  extended 
and  definitely  fixed  by  the  terms  of  the  notes,  showing  an  agreement  to 
give  time  for  the  payment  of  a  debt  already  over  due,  and  a  forbearance 
to  enforce  remedies  for  its  recovery;  and  the  implication  is  very  strong 
that  the  delay  secured  by  the  arrangement  constituted  the  principal  in^ 
ducement  to  the  transfer  of  the  bill.  Such  a  suspension  of  an  existing 
demand  is  frequently  of  the  utmost  importance  to  a  debtor;  it  consti- 
tutes one  of  the  oldest  titles  of  the  law,  under  the  head  of  Forbearance, 
and  has  always  been  considered  a  sufficient  and  valid  consideration. 
Elting  V.  Vanderlyn,  4  John.  237;  Morton  v.  Burn,  7  Ad.  &  El.  19;  Baker 
V.  Walker,  14  M.  &  W.  465;  Jennison  v.  Stafford,  1  Cush.  168;  Walton 
V.  Mascall,  13  M.  &  W.  453;  Com.  Dig.  Act  Assumpsit,  B.  1;  Wheeler  v. 
Slocumb,  16  Pick.  52;  Story  on  Promissory  Notes,  sect.  168." 

1  100  U.  S.  239.  2  102  U.  S.  14. 

8  Carpenter  v.  The  Providence  Ins.  Co.,  16  Peters,  495. 


1112  NEGOTIATION  FOR   VALUE 

aside  from  tlieir  judicial  position  —  as  any  of  the  writers  who 
have  adopted  the  opposite  view.  Such  was  not  the  view 
of  the  Supreme  Court  which  declared,  in  entering  judgment, 
that  — 

''the  transfer,  before  maturitj',  of  negotiable  paper  as  secuiit}'- 
for  an  antecedent  debt  nierel}^  without  other  circumstances,  if  the 
paper  be  so  indorsed  that  the  holder  becomes  a  party  to  the  instru- 
ment, although  the  transfer  is  without  express  agreement  b}'  the 
creditor  for  indulgence,  is  not  an  improper  use  of  such  paper, 
and  is  as  much  in  the  usual  course  of  commercial  business  as  its 
transfer  in  payment  of  such  debt.  In  either  case,  the  bo7ia  fide 
holder  is  unaffected  b}^  equities  or  defences  between  prior  parties, 
of  which  he  had  no  notice.  This  conclusion  is  abundantl}'  sus- 
tained b}'  authorit}'.  A  different  determination  by  this  court 
would,  we  apprehend,  greatlj^  surprise  both  the  legal  profession 
and  the  commercial  world.^  It  is  undoubtedly  true  that  if  we 
should  apply  to  this  case  the  principles  announced  in  the  highest 
court  of  the  State  of  New  York,  a  different  conclusion  would  have 
been  reached  from  that  already  announced.  That  learned  court 
has  held  that  the  holder  of  negotiable  paper  transferred  merely  as 
collateral  security-  for  an  antecedent  debt,  nothing  more,  and  is  not 
a  holder  for  value  within  those  rules  of  commercial  law  which  pro- 
tect such  paper  against  the  equities  of  prior  parties." 

The  authorities  hardly  bear  out  these  remarks.  They  are, 
as  we  have  seen,  divided,  and  may  be  thought  to  incline 
against  the  conclusion  which  was  treated  as  indubitable.  lu 
Currie  v.  Misa,^  the  Exchequer  Chamber  held  that  a  pre- 
existing debt  is  a  valuable  consideration  for  the  transfer  of 
a  check ;  but  their  view  was  laid  aside  in  the  House  of 
Lords,  and  the  judgment  affirmed  on  the  ground  that  the 
creditor  not  only  forbore  to  press  the  debtor,  but  surrendered 

^  "  See  Bigelow's  Bills  and  Notes,  502  et  seq. :  1  Daniel,  Negotiable 
Instruments  (2d  ed.),  ch.  25,  sects.  820-833;  Story,  Promissory  Notes, 
sects.  186,  195  (7th  ed.),  by  Thonidyke;  1  Parsons,  Notes  atid  Bills 
(2d  ed.),  218,  sect.  4,  ch.  6;  and  Redfield  and  Bigelow's  Leading  Cases 
upon  Bills  of  Exchange  and  Promissory  Notes,  where  the  authorities  are 
cited  by  the  authors." 

2  L.*  R.  10  Ex.  153,  165;  Misa  v.  Currie,  L.  R.  1  App.  454,  565. 


OF  BILLS  AND  NOTES. 


1113 


a  security  which  he  had  deposited  and  which  was  entered  to 
his  credit.  Had  the  judgment  in  the  New  York  Bank  v.  The 
Brooklyn  R.  R.  Co.  adhered  to  the  doctrine  of  Codding- 
ton  V.  Bay,  the  decision  would  not  have  excited  so  much 
surprise  in  New  York,  Pennsylvania,  or  Ohio,  nor,  as  we 
may  believe,  in  the  greatest  commercial  centre,  London,  as 
was  naturally  felt  on  learning  that  the  authorities  in  those 
States  would  thenceforth  count  for  naught  in  the  federal 
courts  where  contracts  were  concerned,  if  the  Supreme  Court 
of  the  United  States  thought  they  were  not  in  accordance 
with  the  general  commercial  law,  as  ascertained  from  other 
sources. 

The  ground  taken  by  the  Supreme  Court  in  deciding  that 
the  judgments  of  the  State  courts  ma}^  be  overruled,  as  re- 
gards contracts  made  in  the  course  of  local  and  internal  com- 
merce, was  stated  by  Mr.  Justice  Story  in  Swift  v.  Tyson,  and 
if  it  is  fallacious  the  inference  must  fail :  "  The  law  respecting 
negotiable  instruments  may  be  truly  declared  in  the  language 
of  Cicero,  adopted  by  Lord  Mansfield  in  Luke  v.  Lyde,^  to  be 
in  a  great  measure  not  the  law  of  a  single  country  only,  but 
of  the  commercial  world, —  'Non  erit  alia  lex  Romae  alia 
Athenis,  alia  nunc  alia  posthac,  sed  et  apud  omnes  gentes, 
et  omni  tempore,  una  eademque  lex  obtinebit.'  "  ^  The  testi- 
monj^  of  the  noble  passage  cited  from  the  "  De  Republica  *' 
to  the  universality  of  the  principles  of  ethics  will  be  gen- 
erally accepted ;  but  it  is  not  necessarily  a  safe  guide  in  the 
administration  of  law.  As  Lord  Mansfield  observed  in  Moss 
V.  Gallimore,^  few  things  are  more  apt  to  confound  than  a 
simile ;  and  care  is  certainly  requisite  in  reasoning  from  a 
supposed  analogy.  The  commercial  law  may  be  defined  as 
the  rules  which  govern  traffic,  —  the  sale  and  exchange  of 
commodities,  including  the  contracts  which  directly  or  indi- 
rectly minister  to  such  ends.  That  these  vary  from  age  to 
age  is  undeniable,  and  would  appear  from  the  decisions  on 
the  negotiation  of  promissory  notes  if  there  were  no  other 

1  2  Burr.  R.  883,  887. 

2  Swift  V.  Tyson,  16  Peters,  19. 
8  1  Douglas,  279. 


1114  GENERAL   COMMERCIAL  LAW, 

proof.  The  alteration  is  not  arbitrary,  but  depends  on  a 
change  of  circumstances,  which  may  occur  in  passing  from 
country  to  country  not  less  than  in  descending  the  stream  of 
time.  If  the  civil  law  as  modified  in  France  differs  from  the 
rule  which  prevailed  under  the  Antonines,  in  holding  that  the 
right  of  property  passes  on  the  completion  of  the  contract  of 
sale,  it  is  because  trade  as  now  conducted  requires  that  the 
buyer  may  become  the  owner  as  soon  as  the  parties  have 
agreed  on  the  thing  and  price,  without  waiting  for  delivery. 
The  English  law  is  analogous  in  this  regard  to  that  of  France, 
while  the  rule  in  Scotland  is  nearly  the  same  as  it  was  at 
Rome.  So  a  consideration  is  essential  to  the  obligation  of  a 
parol  contract  in  England,  but  may  be  dispensed  with  in 
France  and  generally  on  the  continent  of  Europe.  Hence, 
while  the  loss  of  the  subject-matter  of  an  executory  contract 
for  the  sale  of  a  specific  chattel,  before  delivery,  discharges 
the  purchaser,  at  common  law,  on  the  ground  of  failure  of  con- 
sideration, no  such  result  follows  under  the  civil  law,  which 
holds  him  answerable  for  the  price,  unless  the  loss  occurred 
through  the  vendor's  fault.^ 

A  parol  promise  to  give  a  purchaser  the  refusal  of  a  house 
or  chattel  —  that  is,  time  to  consider  whether  he  will  buy  at 
the  price  named  —  is  for  a  like  reason  nugatory  under  the 
English  law,  though  binding  in  France,  Scotland,  and  Hol- 
land ;  2  but  may,  however,  be  rendered  obligatory  by  affixing 
a  seal,  —  a  form  unknown  except  among  the  English-speaking 
races.^  So  the  common  and  civil  law  are  governed,  as  regards 
the  sale  of  chattels,  by  the  opposite  maxims  caveat  emptor 
and  caveat  venditor^^  while  the  vendor's  liability  for  the  fail- 
ure of  the  goods  in  kind  and  quality  is  measured  by  rules 
which  are  sometimes  applied  differently  in  England  and  the 

1  Benjamin  on  Sales,  sect.  410;  Hare  on  Contracts,  634,  635. 

2  Cooke  V.  Oxley,  3  Term,  653;  Payne  v.  Cave,  Id.  148;  Fisher  v. 
Seltzer,  23  Penn.  308;  Boston  &  Maine  R.  R.  Co.  v.  Bradley,  2  Cushing, 
539;  Hare  on  Contracts,  310,  342. 

8  See  Calvert  v.  Gordon,  3  M.  &  R.  124;  2  Simons,  253,  257;  Hare  on 
Contracts,  312;  4  Russell,  581;  OfEord  v.  Dnvies,  12  C.  B.  (n.  s.)  748. 
*  Hargous  v.  Stone,  5  N.  Y.  378. 


HOW  FAR   UNIFORM. 


1115 


United  States,  and  not  always  the  same  in  principle.  I  may- 
add  that  the  doctrine  of  the  federal  courts,  that  a  guaranty 
of  future  advances  to  a  third  person  does  not,  even  when 
under  seal,  become  obligatory  on  compliance  with  its  terms,^ 
seems  to  be  without  foundation  in  the  common  law,  and 
has  brought  the  English  and  American  courts  into  variance 
where  they  previously  agreed.'-^  It  is  rejected  in  many  of 
the  States  which  adhere  to  the  English  law,^  and  indicates 
liow  vain  is  the  endeavor  to  reduce  the  commercial  law  to  a 
common  or  universal  rule. 

Joint  contractors  are  each  liable  at  common  law  for  the 
entire  fulfilment  of  the  contract,  but  the  obligation  is  limited 
by  the  civil  law  to  their  respective  shares,  unless  the  thing 
to  be  done  or  rendered  is  indivisible  ;  and  a  promise  by  two 
persons  to  pay  one  hundred  dollars,  and  a  promise  by  each 
to  pay  fifty,  come  to  the  same  thing.*  Such,  at  least,  is  the 
case  as  regards  ordinary  obligations,  though  contracts  among 
merchants  follow  the  English  rule.  An  offer  made  through 
the  mail  cannot  be  accepted  agreeably  to  the  civil  law  after 
the  offerer  has  posted  a  retraction ;  but  such  an  acceptance 
may  be  valid  in  England  and  the  United  States,  although 
the  letter  never  reaches  the  person  to  whom  it  is  ad- 
dressed.^ On  the  other  hand,  while  the. principal's  death  is 
an  instantaneous  revocation  at  common  law,  even  as  regards 
contracts  made  by  the  agent  in  ignorance  of  the  event,  no 
such  effect  will  be  produced  under  the  civil  law  until  the 


1  Douglass  V.  Reynolds,  7  Peters,  113;  Arthur  v.  Morgan,  112  Id.  497; 
Davis  V.  Wells,  104  U.  S.  159;  Davis  Sewing  Machine  Co.  v.  Richards, 
115  Id.  524. 

2  Douglass  V.  Rowland,  24  Wend.  35;  Powers  v.  Bumcratz,  12  Ohio  St. 
273. 

»  Union  Bank  v.  Coster,  3  N.  Y.  203  ;  Farmers'  Bank  v.  Kercheval, 
2  Mich.  504;  Nabb  v.  Koontz,  17  Md.  283.  See  Hare  on  Contracts,  323, 
326. 

*  Freraery,  ;^tudes  de  droit  Commercial,  ch.  113,  pp.  25,  27;  Hare  on 
Contracts,  115. 

«  Pothier,  Contrat  de  Vente,  No.  32;  Adams  v.  Lindsell,  1  B.  &  Aid. 
681 ;  Benjamin  on  Sales,  sect.  72. 
VOL.  II.  —  30  . 


1116  GENERAL  COMMERCIAL  LAW, 

death  is  communicated  to  the  agent.^  Lord  Mansfield's  dicr 
turn  in  Luke  v.  Lyde  was  uttered  in  treating  of  pro  rata 
freight ;  and  nowhere  should  greater  regard  be  had  to  gen- 
eral, as  distinguished  from  local,  jurisprudence  than  in  the 
consideration  of  questions  arising  under  the  maritime  law, 
including  marine  insurance.  Yet  even  here  the  differences 
are  so  great  that  the  authorities  of  one  State  may  be  a  mis- 
leading guide  in  another.^  What  constitutes  a  total  loss  and 
will  justify  an  abandonment  is  tested  by  different  rules  in 
France,  in  England,  and  in  the  United  States ;  and  so  of  the 
right  of  the  master  to  sell  the  vessel.^ 

The  insurers  are  answerable  in  England  and  in  this  coun- 
try whenever  the  loss  is  proximately  caused  by  a  peril  enu- 
merated in  the  policy,  although  the  negligence  of  the  master 
or  mariners  was  a  conducive  cause  which  brought  the  vessel 
within  the  grasp  of  the  peril ;  but  a  recovery  cannot  be  had 
under  the  French  law  for  losses  which  can  be  traced  back  to 
the  fault  of  the  master,  —  as  when  he  lingers  in  port  unjusti- 
fiabl}^,  and  the  ship  is  wrecked  by  a  storm  which  she  would 
have  escaped  by  sailing  at  the  proper  time,  or  a  fire  is  due  to 
his  neglect  or  incompetence.* 

1  Hunt  r.  Rousmanier,  8  Wbeaton,  174;  Gait  v.  Galloway,  4  Peters, 
333;  Smout  v.  Ilbeiy,  10  M.  &  W.  61;  Campanari  v.  Woodbuin,  15  C.  B. 
(o.  s.)  400;  Michigan  State  Bank  n.  Leavenworth,  2  Williams  (Vt.),  209; 
Benjamin  on  Sales,  sects.  72,  73;  Hare  on  Contracts,  95,  374.  See  Ish  v. 
Crane,  8  Ohio  St.  521. 

2  See  Ryder  v.  The  Phoenix  Ins.  Co.,  98  Mass.  185;  Patapsco  Ins.  Co. 
V.  Coulter,  3  Peters,  222;  The  Columbia  Ins.  Co.  v.  Lawrence,  10  Id.  507, 
517;  Grim  v.  The  Phoenix  Ins.  Co.,  13  Johnson,  457;  Busk  v.  The  Royal 
Ins.  Co.,  2  B.  &  Aid.  73;  Walker  v.  Maitland,  5  Id.  171;  Patterson  v. 
Ritchie,  4  M.  &  S.  393. 

8  See  Farn worth  v.  Hyde,  L.  R.  2  C.  P.  204,  225;  Moss  v.  Smith,  9 
C.  B.  94;  Philpott  v.  Swann,  11  C.  B.  (n.  s.)  270;  Kemp  v.  Halliday,  L.  R. 

1  Q.  B.  520;  American  Ins.  Co.  v.  Ogden,  20  Wend.  287,  300;  Peters  v. 
Phoenix  Ins.  Co.,  3  S.  R.  25;  Smith  v.  Bell,  2  Caines'  Cases  in  Error,  153; 
Peele  v.  The  Merchants'  Ins.  Co.,  3  Mason,  27;  The  Columbian  Ins.  Co.  v. 
Ashby,  4  Peters,  139;  Bradlie  v.  The  Maryland  Ins.  Co.,  12  Id.  378;  Peele 
r.  The  Suffolk  Ins.  Co.,  7  Pick.  254;  Reynolds  v.  Ocean  Ins.  Co.,  22  Pick. 
191;  1  Metcalf,  160;  Wood  v.  Lincoln  &  Kennebec  Ins.  Co.,  6  Mass.  479; 

2  Am.  Leading  Cases  (5th  ed.),  682,  702. 

*  See  Pardessus  Droit  Commercial,   No.   771;   Pothier,   Contrat  de 


HOW  FAR   UNIFORM. 


1117 


If  the  French  and  English  courts  arrive  practically  at  the 
same  results  in  such  cases,  under  the  ordinary  form  of  policy, 
it  is  because  barratry  is  construed  as  including  negligence  by 
the  former  tribunals,  though  not  by  the  latter. 

The  enumeration  might  be  carried  further,  but  enough 
has,  perhaps,  been  said  to  show  that  no  uniform  rule  can 
be  deduced  from  the  decisions  of  the  English  and  American 
courts  under  the  commercial  law,  and  that  the  certainty  re- 
quisite to  justice  can  be  obtained  only  by  following  the  local 
tribunals  as  regards  the  contracts  made  in  each  locality. 

The  several  States  of  this  country  are  collectively  one 
nation,  but  they  are  as  self-governing  in  all  that  concerns 
their  purely  internal  commerce  as  if  the  General  Government 
did  not  exist ;  and  when  the  will  of  the  people  of  New  York 
or  Pennsylvania  is  declared  on  such  matters,  through  their 
representatives  in  the  local  legislatures,  expressly  or  by  long- 
continued  acquiescence  in  the  rules  enunciated  by  their 
judges,  it  cannot  be  set  aside  by  Congress  short  of  an  amend- 
ment of  the  Constitution.^  Had  the  New  York  legislature 
declared  that  notes  made  and  negotiated  in  that  State  should 
follow  the  rule  laid  down  in  Bay  v.  Coddington,  the  federal 
tribunals  would  have  been  bound  to  carry  it  into  effect,  not- 
withstanding any  attempt  of  the  national  legislature  to  intro- 
duce a  different  principle ;  and  it  is  inconceivable  that  the 
judicial  department  of  the  government  can  exercise  a  greater 
authority  in  this  regard  than  the  legislative.  Whether  the 
temptation  to  fraud  and  breaches  of  trust  arising  from  the 
ruin  caused  by  the  gambling  contracts,  which  enrich  the  few 
at  the  expense  of  the  many,  will  be  dangerously  increased 
by  holding  that  a  thief  or  swindler  can  confer  a  valid  title 
to  a  coupon  bond  or  bill  payable  to  bearer  by  handing  it 
over  as  security  to  a  creditor,  who  gives  nothing  in  return, 


Louage  Maritime,  sect.  2,  no.  213;  Valin,  liv.  3,  tit.  6,  art.  27;  Emerigon, 
ch.  12,  sect.  3;  Walker  v.  Maitland,  5  B.  &  Aid.  171;  Redman  v.  Wilson, 
14  M.  &  W.  476;  Thompson  v.  Hopper,  1  E.  &  B.  &  E.  1038;  The  Patapsco 
Ins.  Co.  r.  Coulter,  3  Peters,  222;  2  Am.  Lead.  Cas.  (5th  ed.)  779;  Amer- 
ican Ins.  Co.  V.  Insley,  7  Penn.  223. 
1  See  ante,  pp.  439,  442. 


1118  JUDICIAL  LEGISLATION   OF 

and  naturally  refrains  from  asking  questions  that  might  lead 
to  a  discovery  of  the  fraud,  depends  on  circumstances  which 
are  not  necessarily  the  same  in  every  part  of  a  country  so 
extensive  and  various  as  the  United  States.  The  question 
should,  therefore,  be  left  to  the  people  of  the  several  States 
as  best  able  to  determine  what  their  respective  needs  re- 
quire in  matters  that  do  not  concern  the  nation  as  a  whole. 

There  is  another  view  which  should  not  be  omitted.     If 
the  judgments  of  the  State  courts  are  simply  evidence  and 
not  the  law,  they  may  still,  when  handed  down  in  an  un- 
broken chain  for  twenty  years,  with  the  acquiescence  of  the 
legislature  and  the  community,  amount  to  a  demonstration, 
and  establish  the  law  on  a  basis  which  no  power  that  is  not 
legislative  can  disturb.     This  is  universally  admitted  as  re- 
gards the  title  to  real  estate,  and  it  is  not  easy  to  discern 
any  real  distinction   between  such  cases  and   those   where 
a  chattel  or  a  chose  in  action  is  concerned.      If  the  deci- 
sions of  the  State  courts  are  conclusive  as  to  what  will  dis- 
charge antecedent  equities  in  the  case  of  land,  chattels,  or 
non-negotiable  contracts,  they  should  be  equally  conclusive 
when  a  like  question  arises  out  of  a  transfer  of  a  bill  of  ex- 
change or  municipal  bond.     Conceding,  what  no  one  who  is 
acquainted  with  the  subject  will  readily  allow,  that  Chan- 
cellor Kent  and  the  Court  of  Appeals  mistook  the  law  in 
Bay  V.   Coddington,  and  that  their  judgment   might  have 
been  disregarded  by  the  federal  courts  when  originally  pro- 
nounced, it  does  not  follow  that  such  a  course  can  properly 
be  adopted  now  that  those  judgments  have  been  tested  by 
the  experience  of  great  commercial  centres,  and  ratified  by 
the  popular  will,  as  indicated  by  the  failure  of  the  legislature 
to  lay  down  a  different  rule.     Above  all,  they  ought  not  to 
be  set  aside  as  regards  contracts  which  have  been  made  in 
reliance  on  the  principles  therein  enunciated,  and  with  the 
belief  that  these  are  too  well  settled  to  be  changed.     The 
Supreme  Court  of  the  United  States  holds  that  the  State 
courts    cannot    deviate    consistently   with   the    Constitution 
from  the  line  of  precedent  as  regards  intervening  contracts 
where  the  operation  of  a  statute  is  concerned  ;  and  as  the 


THE   SUPREME  COURT.  1119 

principle  is  the  same  wherever  agreements  are  entered  into, 
or  rights  acquired  on  the  faith  of  the  judgment  of  a  court  of 
last  resort,  it  ought  not  to  be  disregarded  by  the  federal  tri- 
bunals in  administering  the  laws  of  the  several  States.^ 

The  case  of  The  Manhattan  Life  Insurance  Co.  v.  Brough- 
ton  '^  affords  a  painful  instance  of  a  state  of  things  which  is 
hardly  creditable  to  American  jurisprudence.  It  arose  out 
of  a  life  insurance  effected  by  a  citizen  of  New  York  in  a 
New  York  company,  payable  to  his  wife.  He  became  insane 
and  killed  himself,  and  an  action  was  brought  by  her  trustee. 
Agreeably  to  the  lex  loci  contractus,  such  a  death  was  a  vio- 
lation of  a  condition  in  the  policy  that  the  insured  shall  not 
die  by  his  own  hand  ;  and  the  plaintiff  was  nonsuited.  This 
seemingly  should  have  been  the  end  of  the  case,  because  it 
depended  solely  on  the  law  of  New  York,  and  both  parties 
were  citizens  of  that  State.  A  citizen  of  New  Jersey  was, 
however,  substituted  as  trustee,  who  brought  a  suit  on  the 
policy  in  the  Circuit  Court  of  the  United  States,  and  ob- 
tained a  judgment  which  was  sustained  by  the  Supreme 
Court  at  Washington.  The  contrjict  was  confessedly  gov- 
ernpd  by  the  State  law;  but  the  view  taken  by  the  federal 
courts  differed  so  widely  from  the  rule  laid  down  by  the 
State  tribunals  as  to  show  that  contradictory  rules  prevail 
in  New  York,  each  claiming  to  be  the  law.  Such  a  result 
makes  the  administration  of  justice  a  game,  where  the 
event  depends  on  the  skill  of  the  players,  and  not  on  fun- 
damental principles.  The  contract  was  made  on  the  faith 
of  the  New  York  decisions,  and  the  insurers  were  entitled 
to  believe  that  the  rule  would  not  be  changed  retroac- 
tively to  their  prejudice.^ 

1  See  ante,  pp.  725,  727 ;  Sears  v.  Cottrell,  5  Mich.  251 ;  State  v.  Allen, 
2  McCord,  56. 

2  109  U.  S.  121.  »  See  ante,  p.  722. 


LECTURE    LII. 

The  United  States  have  no  general  or  common-law  Authority  to  punish 
Crime;  and  their  Criminal  Jurisdiction  is  confined  to  the  offences 
enumerated  in  the  Constitution ;  to  Violations  of  such  "  necessary  and 
proper  laws  "  as  are  made  by  Congress,  and  to  Acts  done  in  the  Ter- 
ritories and  such  places  as  have  been  ceded  by  the  States.  —  In  Eng- 
land Treason  is  an  Offence  against  the  Person  or  Sovereignty  of  the 
King,  and  may  consist  in  a  Conspiracy  which  is  not  carried  into  effect. 
—  It  consists  under  our  Constitution  in  levying  War  against  the 
United  States  or  giving  Aid  and  Comfort  to  their  Enemies.  A  Plot 
to  subvert  the  Government  or  the  Assassination  of  the  President  is 
not  treason,  but  may  be  visited  with  Death  or  such  other  Penalties 
as  may  be  prescribed  by  Congress.  —  The  Law  of  Nations  requires 
every  Government  to  use  Diligence  to  prevent  Acts  that  are  of  a  na- 
ture to  injure  other  Nations  with  which  it  is  at  peace.  —  Counterfeit- 
ing the  Money  or  Securities  of  a  Foreign  Country,  or  manufacturing 
Spurious  Notes  or  Coin  with  an  Intent  to  circulate  them  abroad  is  an 
Offence  within  this  Principle.  —  Piracy  is  Robbery  or  other  act  done 
feloniously  on  the  High  Seas,  contrary  to  International  Law. 

The  police  power  to  repress  acts  that  are  prejudicial  to 
society  or  to  individuals  was  not,  save  exceptionally,  delegated 
to  the  General  Government,  and  remains  in  the  States.^ 
Although  they  are  forbidden  by  the  Fourteenth  Amendment 
to  authorize  or  sanction  any  act  which  operates  as  a  depriva- 
tion of  life,  liberty,  or  property,  —  and  Congress  are  empow- 
ered to  enforce  the  prohibition,  —  the  criminal  jurisdiction 
of  the  United  States  is  not  thereby  enlarged,  nor  does  it 
acquire  the  right  to  legislate  for,  or  inflict  penalties  on,  indi- 
viduals.2     The  United  States  consequently  have  no  general 

^  Ex  parte  BoUman,  4  Cranch,  75;  United  States  v.  Coolidge,  1  Whea- 
ton,  415;  Cohen  v.  Virginia,  6  Id.  264,  426;  United  States  v.  Cruik- 
shank,  92  U.  S.  542;  Civil  Rights  Cases,  109  Id.  315. 

2  Civil  Service  Cases,  109  U.  S.  3.     See  ante,  pp.  524,  533. 


CRIMINAL  JURISDICTION. 


1121 


or  common-law  power  to  punish  crime,  and  their  authority 
in  this  regard  is  confined  to  the  following  heads  :  (1)  the 
express  power  conferred  by  the  Constitution  in  certain 
enumerated  instances;  (2)  the  implied  authority  resulting 
from  the  power  to  make  all  necessary  and  proper  laws,  and 
consequently  to  punish  every  pereon  by  whom  such  laws  are 
broken  ;^  (3)  the  power  to  exercise  criminal  as  well  as  civil 
jurisdiction  over  the  Territories,  and  in  such  localities  as 
have  been  ceded  by  the  States, to  the  United  States.^ 

For  like  reasons  the  federal  courts  cannot  take  cognizance 
of  any  act  as  criminal  which  has  not  been  declared  criminal 
by  Congress ;  and  Congress  cannot  declare  any  act  criminal 
unless  it  is  contrary  to  some  law  made,  or  duty  imposed, 
in  pursuance  of  the  powers  conferred  on  the  General  Gov- 
ernment.3  But  all  laws,  rights,  and  duties  within  the  scope 
of  the  civil  powers  of  the  United  States  may  be  enforced 
by  penal  legislation,  and  punishment  inflicted  for  their 
violation.* 

As  the  law  now  stands,  the  criminal  jurisdiction  of  the 
State  and  of  the  federal  courts  is  severally  exclusive,  and 
neither  can  intrude  on  the  domain  of  the  other.  If  an 
offence  is  indictable  in  the  State  courts,  an  indictment  will 
not  lie  for  the  same  offence  in  the  federal  courts,  and  so, 
conversely,  of  offences  cognizable  in  the  last-named  tribu- 
nals. But  it  is  also  true  that  as  both  governments  are  en- 
titled to  obedience,  the  same  act  may  be  punishable  by  both. 
An  assault  and  battery  is  a  breach  of  the  peace  of  the  State 
where  the  act  is  done,  and  punishable  as  such  only  by  her 

1  See  ante,  p.  116;  Ex  parte  Yarbrough,  110  U.  S.  651;  Legal  Tender 
Cases,  12  Wallace,  536. 

2  The  United  States  v.  Connell,  2  Mason,  60;  Fort  Leavenworth  v. 
Lowe,  lU  U.  S.  525,  533;  Cohen  v.  Virginia,  6  Wheaton,  264,  426. 

8  United  States  v.  DeWitt,  9  Wallace,  41 ;  United  States  v.  Fox,  95 
U.  S.  670;  United  States  v.  Reese,  92  Id.  214;  United  States  v.  Cruik- 
shank,  Id.  542 ;  Baldwin  v.  Franks,  120  Id.  678  ;  see  ante,  pp.  522,  533. 
See  Patterson's  Federal  Restraints  on  State  Action,  p.  200. 

*  United  States  v.  Gleason,  1  Woolworth,  128;  Scott  v.  United  States, 
3  Wallace,  642;  United  States  v.  Fox,  95  U.  S.  670;  Ex  parte  Yarbrough, 
110  Id.  651,  658. 


1122  TREASON  AS  DEFINED 

courts,  wliether  the  person  assailed  was  or  was  not  in  the 
service  of  the  United  States.  But  if  such  was  his  official 
character,  and  he  was  hindered  in  the  performance  of  his 
duty,  the  laws  of  the  Union  are  violated  as  well  as  the  laws 
of  the  State,  and  a  conviction  or  acquittal  in  the  courts  of 
one  government  will  not  shield  him  from  punishment  by  the 
other.i 

Another  qualification  has  been  ingrafted  on  the  Constitu- 
tion,—  that  when  a  defence  to  a  prosecution  in  a  local  court 
depends  on  the  Constitution  or  an  authority  conferred  by 
Congress,  the  indictment  may  be  removed  to  the  Circuit 
Court  of  the  United  States  for  the  proper  district,  and  the 
guilt  or  innocence  of  the  accused  determined,  with  a  due 
regard  to  the  laws  of  both  governments.^  Such  a  case  may 
arise  out  of  a  homicide  by  the  marshal  in  executing  the  pro- 
cess of  a  federal  court,  or  a  duty  imposed  by  an  order  from 
the  President,  or  an  act  of  Congress. 

The  express  power  of  Congress  to  legislate  for  the  punish- 
ment of  crime  is  confined  within  narrow  limits.  By  Article 
I.,  Section  8,  Congress  are  empowered  to  provide  for  the 
punishment  of  counterfeiting  the  securities  and  current  coin 
of  the  United  States,  and  also  to  define  and  punish  piracies 
and  felonies  on  the  high  seas,  and  offences  against  the  law  of 
nations.  In  Article  III.,  Section  3,  which  relates  principally 
to  the  Judiciary,  it  is  provided  that  treason  against  the  United 
States  shall  consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  comfort.  By 
the  second  section  of  the  same  article.  Congress  have  power 
to  declare  the  punishment  of  treason  ;  but  no  attainder  of 
treason  shall  work  corruption  of  blood  or  forfeiture,  except 
during  the  life  of  the  person  so  attainted. 

In  considering  these  provisions  we  may  begin  with  that 
relating  to  the  offence  of  treason.  The  gravamen  of  this 
crime  is  the  injury  done  to  the  welfare  of  society  by  sub- 

1  Moore  v.  Illinois,  14  Howard,  13;  Scott  v.  United  States,  3  Wallace, 
342;  Ex  parte  Yarbrough,  110  U.  S.  651,  659. 

2  Tennessee  v.  Davis,  100  U.  S.  257.  See  post,  p.  1154;  Bush  v.  Ray, 
107  U.  S.  110. 


BY  THE  ENGLISH  LAW.  1123 

verting  the  frame  of  government  on  which  the  maintenance 
of  social  order  depends.  And  as  the  evil  resulting  from  this 
cause  may  spread  farther,  and  have  more  enduring  conse- 
quences than  can  well  arise  from  a  wrong  done  to  an  indi- 
vidual, so  treason  is  the  gravest  offence  known  to  the  law, 
and  one  meriting  condign  punishment.  There  may  be  in- 
stances where  resistance  to  bad  and  oppressive  government  is 
dictated  by  patriotism  and  approved  by  morals ;  but  this  is  a 
distinction  which  municipal  law  obviously  cannot  recognize. 

Where  government  is  personal  there  can  be  no  practical 
distinction  between  the  sovereign  and  the  State ;  and  an 
assault  on  the  one  must  necessarily  be  attended  with  danger 
or  injury  to  the  other.  Everything  wilfully  done  or  at- 
tempted whereby  the  king's  life  may  be  endangered  —  as, 
for  instance,  conspiring  to  seize  or  imprison  the  king,  or  as- 
sembling company  with  that  intent  —  is  treasonable.  It  is  an 
old  saying  that  the  way  is  brief  from  the  prison  of  a  sovereign 
to  his  grave  ;  and  revolutions  beginning  with  professions  of 
respect  to  the  monarch  have  not  unfrequently  ended  in  his 
exile  or  death.  Moreover,  in  a  monarchy  the  king  is  the 
pivot  or  keystone  of  the  State,  and  his  person  cannot  be  re- 
strained or  injured  without  disturbing  the  whole  fabric  of 
society. 1  This  was  peculiarly  true  under  the  feudal  system, 
which  summed  up  all  the  duties  of  the  subject  in  allegiance 
to  the  crown.  Accordingly  treason,  under  the  law  of  Eng- 
land as  defined  in  the  statute  25  Edward  III.,  chap.  3,  22, 
was  an  offence  done  to  the  dignity,  the  life,  or  the  honor  of 
the  king.  To  compass  his  death,  that  of  the  queen,  or  of 
their  son  and  heir ;  to  violate  the  king's  companion,  or  the 
king's  eldest  daughter,  unmarried,  or  the  wife  of  the  king's 
eldest  son  and  heir ;  to  levy  war  against  the  king,  or  to  ad- 
here to  his  enemies,  giving  them  aid  and  comfort ;  to  coun- 
terfeit the  king's  great  or  privy  seal,  to  counterfeit  the  king's 
money,  or  to  bring  false  money  into  the  realm  counterfeit  to 
that  of  England ;  and  finally,  to  slay  the  chancellor,  treas- 
urer, or   king's  justices  of  either  bench,  or   other  justices 

^  See  Hallam's  Constitutional  History,  vol.  iii.  chap.  xv.  p.  152. 


1124  TREASON  UNDER  THE  CONSTITUTION 

assigned  to  hear  and  determine,  being  in  their  places  doing 
their  office,  —  were  all  felonies  rising  to  the  grade  of  treason, 
as  defined  by  the  statute  of  Edward  III.  In  some  of  these 
instances  the  injury  to  the  king,  considered  merely  as  an  in- 
dividual, might  seem  too  slight  to  merit  so  severe  a  penalty  ; 
but  there  was  in  all  of  them  an  actual  or  possible  injury  to 
the  public  which  it  was  incumbent  on  government  to  re- 
press. To  counterfeit  the  current  coin  of  the  realm  was 
not  merely  to  diminish  the  revenue  of  the  mint,  it  tended 
to  create  uncertainty  and  confusion  in  all  commercial  trans- 
actions throughout  the  kingdom.  The  seduction  of  the 
king's  wife,  of  his  eldest  daughter,  or  of  the  wife  of  his  eldest 
son,  might  entail  the  consequences  of  a  disputed  succession. 
Levying  war  against  the  king,  or  by  overt  means  compassing 
his  death,  meant  nothing  less  than  the  overthrow  of  the  gov- 
ernment, and  the  loss  of  the  security  which  it  gave  to  life 
and  person.  In  these  and  other  cases  of  a  like  kind  the  law 
might  well  show  itself  jealous  of  attempts  which,  though 
nominally  directed  against  an  individual,  really  jeoparded 
the  safety  of  the  community. 

The  incongruous  classification  of  the  statute  of  Edward  II. 
was  superseded  in  the  beginning  of  this  century  by  the  act 
of  57  George  III.,  chap.  7,  which  carries  out  the  same  general 
design  by  providing  that  — 

"  if  an}^  person  or  persons  during  the  life  of  the  King,  and  until 
the  end  of  the  next  session  of  Parliament  after  a  demise  of  the 
Crown,  shall,  within  the  realm  or  without,  compass,  imagine,  in- 
vent, devise,  or  intend  the  death  or  destruction,  or  any  bodily  harm 
tending  to  the  death  or  destruction,  maiming  or  wounding,  impris- 
onment or  restraint,  of  the  person  of  the  same  our  Sovereign  Lord 
the  King,  his  heirs  and  successors,  or  to  deprive  or  depose  him  or 
them  from  the  style,  honour,  or  kingl}'  name  of  the  imperial  crown 
of  this  realm,  or  of  an}'  of  his  Majesty's  dominions  or  countries,  or 
to  levy  war  against  his  Majesty,  his  heirs  and  successors,  within 
this  realm,  in  order  by  force  or  constraint  to  compel  him  or  them 
to  change  his  or  their  measures  or  counsels,  or  in  order  to  put 
an}"  force  or  constraint  upon,  or  to  intimidate  or  overawe  both 
houses  or  either  house  of  Parliament,  or  to  move  or  stir  any  for- 


OF   THE  UNITED  STATES.  1125 

eigner  or  stranger  with  force  to  invade  this  realm,  or  any  of  his 
Majesty's  dominions  or  countries  under  the  obeisance  of  his  Maj- 
esty, his  heirs  and  successors ;  and  such  compassings,  imagina- 
tions, inventions,  devices,  and  intentions,  or  any  of  them,  shall 
express,  utter,  or  declare,  by  publishing  any  printing  or  writing, 
or  by  any  overt  act  or  deed,  —  being  legally  convicted  thereof 
upon  the  oaths  of  two  lawful  and  credible  witnesses  shall  be  ad- 
judged a  traitor,  and  suffer  as  in  cases  of  high  treason."  ^ 

Treason,  as  known  to  the  common  law  and  under  the 
above-cited  statutes,  necessarily  ceased  to  exist  on  the  Dec- 
laration of  Independence  ;  and  the  United  States  as  consti- 
tuted under,  the  Articles  of  Confederation,  had  no  criminal 
jurisdiction.  War  might,  consequently,  have  been  levied 
with  impunity  by  a  citizen  against  the  federal  government, 
except  so  far  as  it  was  punishable  under  the  statutes  of  the 
several  States.  And  it  was  not  until  the  adoption  of  the 
Constitution,  in  1789,  that  the  people  of  the  United  States 
acquired  the  power  to  protect  themselves  against  treason- 
able attempts  to  subvert  the  government  which  they  had 
established.2 

In  passing  from  a  monarchy  to  a  republic,  the  question 
ceases  to  be  complicated  with  merely  personal  considera- 
tions. The  nation  is  no  longer  in  leading-strings  ;  it  has 
come  of  age,  and  is  in  the  full  possession  of  the  sovereignty 
formerly  delegated  to  a  king.  There  may  be  a  chief-magis- 
trate exercising  the  kingly  function  in  a  certain  measure  and 
for  the  time  being ;  but  he  does  not  personify  the  State. 
The  president  of  the  United  States  has  for  some  purposes 
more  power  than  the  king  of  England,  and  every  good  citi- 
zen should  wish  him  well ;  but  to  kill  him  is  simply  murder, 
unless  the  crime  is  an  act  of  war  against  the  government. 
He  is  not  encompassed  by  a  triple  hedge  which  it  is  death 
to  break,  or  even  to  approach  with  a  felonious  attempt.  He 
may  sustain  bodily  injury  from  an  assault,  or  be  wounded 
where  the  family  affections  are  most  sensitive,  and  yet  have 

^  Hallam,  Constitutional  History,  vol.  iii.  chap.  xv.  p.  134. 
2  See  antey  p.  66. 


1126  CONSPIRACY,   OR  THE  ASSASSINATION 

no  other  mode  of  vindication  or  redress  than  an  indictment 
for  an  assault  and  battery,  or  an  action  on  the  case  for  dam- 
ages. He  is  a  private  citizen  in  a  public  station,  and  must, 
as  such,  take  his  chance  with  the  common  herd.  In  an  al- 
most forgotten  instance,  where  a  gross  personal  indignity  was 
offered  to  President  Jackson,  the  only  chastisement  inflicted 
on  the  aggressor  was  a  hearty  blow  from  the  cane  of  the  out- 
raged victor  of  New  Orleans.  In  England  an  assault  on  the 
chief-magistrate  endangers  society,  and  the  offence  would 
deservedly  have  ranked  as  treason.  But  names  cannot  alter 
things.  On  the  president  more  than  on  an  English  monarch 
may  rest  the  responsibility  of  a  great  decision.  His  sense 
and  manliness  may  stay,  his  want  of  energy  and  firmness 
precipitate,  the  tottering  commonwealth.  Do  what  we  may, 
the  office  cannot  be  separated  from  the  individual.  If  the 
death  of  Abraham  Lincoln  had  occurred  four  years  earlier, 
the  course  of  history  might  have  been  changed.  When  he 
fell  by  the  hand  of  an  assassin  it  was  thought  necessary  to 
suspend  the  safeguards  afforded  by  the  Constitution  and 
the  fundamental  principles  of  the  common  law,  by  bringing 
the  persons  who  were  charged  with  being  accomplices  in  the 
crime  before  a  military  commission,  and  sentencing  them  to 
death.  What  then  occurred  may  be  thought  to  indicate  that 
the  safety  of  the  chief-magistrate  demands  stronger  guaran- 
tees than  that  of  an  individual.  There  is  a  greater  evil  than 
punishing  the  innocent  for  the  guilty,  —  that  of  punishing 
the  guilty  by  arbitrary  and  illegal  means,  which  lead  to  the 
belief  that  a  wrong  has  been  done  to  innocence. 

The  assassination  of  Mr.  Garfield  gave  a  further  and  pain- 
ful proof  of  the  necessity  of  protecting  the  president.  The 
object  of  punishment  is  not  vengeance,  but  to  prevent  the 
repetition  of  acts  that  are  attended  with  injurious  conse- 
quences to  the  community.  And  as  a  blow  struck  at  the 
chief-magistrate  is  more  far-reaching  and  hurtful  in  its  effect 
than  any  which  can  be  aimed  at  an  individual,  so  it  should 
be  visited  with  a  severer  penalty.  An  assault  on  the  presi- 
dent, with  intent  to  kill  or  to  inflict  grievous  bodily  harm, 
should  be  declared  treason,  and  made  punishable  with  death, 


OF  THE   PRESIDENT   IS  NOT   TREASON. 


1127 


as  a  means  of  warning  ruffians  like  Guiteau  that  such  acts 
are  viewed  with  abhorrence  by  the  American  people. 

A  detailed  examination  of  the  law  of  treason  would  be  out 
of  place  in  this  work.  It  may,  under  the  Constitution,  be 
committed  in  two  ways:  (1)  by  levying  war  against  the 
United  States ;  and  (2)  by  adhering  to  the  enemies  of  the 
United  States,  giving  them  aid  and  comfort.  Merely  assem- 
bling to  plot  an  insurrection  will  not  therefore  constitute  this 
crime,  which,  under  our  law,  is  limited  to  the  overt  acts  of 
levying  war  against  the  United  States,  or  giving  aid  and 
comfort  to  their  enemies.^  If,  as  the  spread  of  secession  in- 
dicates, this  definition  is  not  broad  enough  to  give  security 
against  the  plots  which  undermine  and  may  end  in  subvert- 
ing a  government,  the  error  is  on  the  side  of  mercy.  A  con- 
certed plan  violently  to  dissolve  the  Union,  or  substitute  a 
monarchy  for  the  republic,  would  not  therefore  be  punishable 
as  treason  under  the  Constitution,  though  manifested  by  an 
ordinance  of  secession  or  the  election  of  an  emperor.  To 
constitute  the  crime  there  must  be  some  act  that  can  fairly 
be  construed  as  war.  This  accentuates  the  difference  be- 
tween our  law  and  that  of  England,  where  compassing  the 
king's  death  is  as  much  treason  as  if  the  design  were  carried 
into  effect.  When,  however,  an  overt  act  is  done  which 
amounts  to  levying  war,  all  who  concur  in  it  may  be  within 
the  meaning  of  the  Constitution,  although  no  blow  was 
struck  and  they  were  not  actually  present.^  It  was,  how- 
ever, decided  in  a  case  arising  in  the  Circuit  Court  of  Ohio 
that  persons  engaged  in  an  insurrection  against  the  govern- 
ment are  not  enemies  in  such  a  sense  that  giving  them  aid 
and  comfort  will  be  treasonable.  This  seems  questionable 
when  the  insurrection  has  assumed  the  proportions  of  actual 
war ;  and  is  manifestly  at  variance  with  the  judgment  pro- 
nounced in  the  Prize  Cases/"^ 


^  See  Chief -Justice  Marshall's  opinion,  as  given  in  the  Report  of 
Burr's  Trial,  vol.  ii.  p.  426.     Washington,  1808. 

2  Ex  parte  Bollman,  4  Cranch,  75;  Carlisle  v.  United  States,  16  Wal- 
lace, 147. 

«  2  Black,  687;  Mrs.  Alexander's  Cotton,  2  Wallace,  404,  419. 


1128  CONCERTED   RESISTANCE  TO   AN   ACT   OF 

It  is  not  always  eas}'  to  draw  the  line  between  a  riot,  or 
other  aggravated  breach  of  the  peace,  and  actual  treason.  A 
conspiracy  to  rescue  a  prisoner,  oppose  the  service  of  a  writ, 
or  prevent  the  law  from  being  executed  in  a  particular  or 
single  instance,  is  not  treasonable  under  the  law  of  the  United 
States  or  that  of  England,  although  carried  into  effect  by  an 
armed  array  and  with  a  preconcerted  purpose.  The  govern- 
ment is  not  directly  assailed,  and  if  no  injury  ensues  to  life 
or  property,  the  offence  will  simply  be  a  misdemeanor.  But 
when  such  acts  are  done  in  pursuance  of  a  concerted  design  to 
procure  the  repeal  of  an  obnoxious  law  by  intimidation,  or  to 
prevent  the  officers  of  the  government  from  carrying  it  into 
effect,  war  may  properly  be  said  to  be  levied  against  the 
United  States,  and  the  parties  are  chargeable  with  treason.^ 
"  If,"  said  Patterson,  J.,  in  The  United  States  v.  Mitchell, 
"the  object  of  the  insurrection  was  to  suppress  the  excise 
offices,  and  prevent  the  execution  of  an  act  of  Congress  by 
force  and  intimidation,  the  offence  in  legal  estimation  is  a 
usurpation  of  the  authority  of  government ;  it  is  high  treason 
by  levying  war."  ^ 

It  has  been  justly  observed,  "  An  intention  to  commit 
an  offence  however  manifest,  a  contrivance  however  de- 
liberate, an  attempt  however  casually  rendered  abortive, 
differ  widely  from  an  accomplished  crime,  and  are  punish- 
able under  the  common  law  with  a  lower  penalty,  or  even 
none  at  all.  Such  a  distinction  is  not  equally  applicable  to 
the  crime  of  treason  where  success  may  bring  with  it  impu- 
nity, and  free  the  offender  from  the  penalty  of  the  law.  The 
jurisprudence  of  most  countries,  therefore,  treats  conspiracies 
against  the  sovereign  power  as  rebellion,  and  punishable 
with  death."  ^ 

The  necessity  for  empowering  government  to  punish  mach- 
inations which  threaten  its  existence  was  demonstrated  by 
the  conspiracy  against  the  United  States  which  led  to  seces- 

1  Hallam's  Constitutional  History,  vol.  ii.  p.  156. 

2  United  States  v.  Mitchell,  2  Dallas,  348;  United  States  v.  Vigal,  Id. 
346;  United  States  v.  Hanwick,  2  Wallace,  Jr.  140. 

«  Hallam's  Constitutional  History,  vol.  iii.  chap.  xv.  p.  15. 


CONGRESS  IS  NOT  NECESSARILY  TREASON.  1129 

sion  and  the  Civil  War.  The  plot  broke  into  revolt  in  the 
beginning  of  1861,  and  on  July  31  of  that  year  Congress 
made  a  law  which  was  subsequently  embodied  in  the  Revised 
Statutes,  section  5336.  The  act  provides  for  the  punishment 
of  persons  who  conspire  (1)  "to  overthrow,  put  down,  or 
destroy  by  force  the  government  of  the  United  States,  or 
to  levy  war  against  them,  or  to  oppose  by  force  the  authority 
thereof;"  or  (2)  "by  force  to  prevent,  hinder,  or  delay  the 
execution  of  any  law  of  the  United  States;"  or  (3)  "by 
force  to  take  or  possess  any  property  of  the  United  States 
contrary  to  the  authority  thereof."  In  Baldwin  v,  Franks,^ 
tlie  defendant  conspired  with  others  to  expel  the  Chinese 
residents  and  traders  of  the  town  of  Nicholaus,  in  the  State 
of  California,  and  in  pursuance  of  that  design  put  them  on 
board  a  steamboat,  and  by  threats  and  violence  drove  them 
from  the  town  and  State.  The  court  held  that  the  defend- 
ant was  not  indictable  under  the  act.  To  constitute  a  viola- 
tion of  its  provisions  "  there  must  be  something  more  tlian 
setting  the  laws  at  defiance.  There  must  be  a  conspiracy  " 
forcibly  to  resist  the  authority  of  the  United  States  while 
carrying  the  law  into  execution.  "  The  government  must  be 
opposed,"  as  distinguished  from  an  attempt  to  do  the  thing 
whicli  it  prohibits,  or  to  frustrate  the  objects  which  it  has 
legislatively  endeavored  to  promote.  The  decision  turned 
on  the  language  of  the  statute ;  and  the  power  of  Congress 
to  protect  the  persons  and  property  of  aliens  by  appropriate 
penal  legislation  is  unquestionable. 

No  man  can  be  guilty  of  treason  by  seeking  to  overthrow 
a  government  to  which  he  is  not  bound,  either  permanently, 
as  in  the  case  of  a  natural-born  citizen,  or  temporarily,  as  in 
that  of  a  resident  or  denizen.  But  every  one  who  comes  into 
a  country  acquires  a  right  to  protection,  implying  a  corres- 
ponding obligation,  which  cannot  be  violated  without  a 
crime.  To  seek  to  injure  the  land  where  we  have  taken 
shelter  is  therefore  an  offence  which  may  be  laid  as  treason 
in  an  indictment  appropriately  drawn.  According  to  Cal- 
vin's Case,2  the  proper  course  under  these  circumstances  was 
1 120  U.  S.  678,  692,  696,  702.  2  7  Coke,  6,  6. 


1130  INHABITANTS   OF 

to  aver  that  the  accused  had  committed  treason  against  "  our 
lady  the  Queen,"  omitting  these  words,  "  his  natural  lady  " 
(naturalem  dominam  suam},  and  concluding,  '*  against  his  due 
allegiance." 

It  is  not  so  easy  to  apply  the  converse  of  this  principle.  It 
was  resolved  in  Calvin's  Case  that  if  alien  enemies  came  into 
England  and  there  took  possession  of  a  town  or  fortress,  the 
authority  of  the  Crown  would  be  so  far  suspended  within  the 
conquered  place  that  their  children  born  therein  would  not 
owe  allegiance  to  the  king,  or  be  natural-born  subjects.  For 
like  reason  the  Supreme  Court  of  the  United  States  decided 
that  goods  imported  from  Canada  into  Eastport,  Me.,  during 
the  war  of  1812,  while  that  place  was  held  by  the  British 
forces,  did  not  owe  duty  to  the  government  either  at  the 
time  or  subsequently,  because  the  effect  of  the  hostile  occu- 
pation was  to  suspend  the  operation  of  the  laws  of  the  United 
States ;  and  it  may  be  contended  that  when  a  foreign  or  do- 
mestic enemy  obtains  actual  possession  of  any  portion  of  the 
soil  of  a  country,  to  the  exclusion  of  the  rightful  government, 
the.  latter  cannot  hold  the  inhabitants  guilty  of  treason  for 
yielding  an  enforced  obedience. 

On  the  occupation  of  any  part  of  the  United  States  by  an 
invading  or  insurrectionary  force,  the  inhabitants,  agreeably 
to  the  decisions,  are  between  the  upper  and  nether  mill- 
stones, and  may  not  only  be  despoiled  by  the  hostile  power, 
but  treated  by  their  own  government  as  the  enemy  whose 
subjects  they  have  temporarily  become,  and  denied  the  ben- 
efit of  the  municipal  law.  Tiie  goods  of  ever}^  man  who  re- 
sides in  such  a  district  may  not  only  be  captured  as  prize  of 
war,  but  a  libel  may  be  filed  and  judgment  entered  by 
default  against  the  personal  property  which  he  owns  in  the 
parts  of  the  country  which  are  in  the  undisturbed  possession 
of  the  national  forces,  without  inquiring  into  his  loyalty,  and 
whether  he  could  and  ought  to  have  crossed  the  lines  and 
escaped  from  the  hostile  territory .^     And  it  would  seem  that 

1  Prize  Cases,  2  Black,  635,  674;  Mrs.  Alexander's  Cotton,  2  Wallace, 
404,  419  ;  Miller  v.  The  United  States,  11  Id.  268,  311.  See  ante, 
p.  1022. 


HOSTILE   TERRITORY.  1131 

a  government  cannot  justly  punish  him  as  a  traitor  whom  it 
is  unable  to  protect,  and  treats  as  an  enemy  for  not  abandon- 
ing his  family  and  home.  No  penalty  will  be  incurred  by 
submission  to  a  hostile  or  usurping  force  which  obtains  pos- 
session of  the  entire  country  and  establishes  a  government 
de  facto ;  and  the  case  is  morall}*  if  not  legally  the  same 
when  a  town  or  province  falls  into  the  hands  of  a  foreign  or 
domestic  enemy  who  establishes  a  government  of  his  own 
creation,  although  the  rightful  government  may  still  con- 
tinue to  bear  sway  elsewhere.  The  better  opinion,  neverthe- 
less, is  that  while  such  considerations  may  afford  ground  for 
a  pardon,  they  do  not  constitute  a  defence  that  can  be  re- 
garded by  a  court  or  jury. 

The  right  to  punish  aliens  for  offences  which  would  be 
felonious  if  committed  by  a  citizen  is  subject  to  a  limitation 
imposed  by  international  law.  For  if  the  act  is  done  on  be- 
half of  his  own  country,  and  adopted  by  it  subsequently,  and 
would  be  valid  jure  belli  had  war  been  declared,  the  ratifica- 
tion will  operate  as  a  command,  and  the  injured  party  will 
thereupon  be  remitted  by  the  public  law  to  the  remedy 
against  the  government  which  has  assumed  the  responsi- 
bility .^  Accordingly,  when  a  steamer  was  burnt  in  a  harbor 
of  the  State  of  New  York  by  an  English  subject  during  an 
insurrection  in  Canada,  on  the  allegation  that  she  was  con- 
veying munitions  of  war  to  the  insurgents,  and  the  English 
government  ratified  the  act,  and  insisted  that  the  offender, 
who  had  been  tried  and  convicted  by  the  tribunals  of  the 
State,  should  be  released,  the  New  York  tribunals  refused  to 
recognize  the  claim  ;  and  the  controversy  might  have  had 
serious  consequences  had  not  the  jury  rendered  a  verdict  of 
acquittal  on  the  ground  that  the  evidence  against  the  pris- 
oner was  his  own  assertion,  which  proved  to  be  an  empty 
boast.2  Such  a  defence  as  that  made  in  The  People  v» 
McLeod  obviously  would  not  avail  a  man  who,  after  taking 
up  his  abode  in  a  foreign  country  and  becoming  subject  to 
its  laws,  should  attempt  while  there  to  destroy  its  ships  or 

^  Buron  v.  Denman,  2  Exchequer,  167.     See  ante,  p.  915. 
2  The  People  v.  McLeod,  25  Wend.  483;  5  HiU,  378. 

VOL.  II.  — 31 


1132  OFFENCES  AGAINST 

dockyards,  or  do  any  other  hostile  act  on  behalf  of  his  own 
sovereign,  before  or  after  a  declaration  of  war. 

"  The  law  of  nations  "  is  a  general  term,  comprising  the 
principles  governing  the  relations  between  sovereign  States 
standing  on  an  equal  footing,  and  recognizing  no  common 
superior.  It  was  therefore  necessary  that  Congress  should 
be  authorized,  not  only  to  punish  offences  of  this  description, 
but  to  define  wherein  they  consist.  Laws  protecting  the 
persons  of  ambassadors,  consuls,  and  other  agents  accredited 
by  foreign  governments  to  our  own,  fall  within  this  power ; 
and  so  do  laws  requiring  citizens  and  all  persons  within  the 
United  States  to  observe  the  duty  of  neutrality  towards  for- 
eign governments  engaged  in  warfare  with  each  other  or 
with  their  own  citizens.  Congress  may  consequently  forbid 
troops  to  be  enlisted,  or  vessels  equipped,  in  this  country  for 
the  service  of  a  belligerent.  Criminal  statutes  for  enforcing 
and  preserving  the  neutral  relations  of  the  United  States 
with  other  nations  were  passed  by  Congress  at  a  very  early 
date,  and  their  constitutionality  is  indisputable.^  The  neces- 
sity for  the  exercise  of  such  an  authority  is  shown  by  the 
case  of  the  "  Alabama,"  which  gave  rise  to  a  controversy 
between  this  country  and  England  that,  but  for  mutual  for- 
bearance, might  have  led  to  war. 

There  is  another  duty  which  every  nation  should  observe, 
—  to  give  the  citizens  and  subjects  of  foreign  governments  a 
due  measure  of  protection  in  the  prosecution  of  commerce, 
and  whenever  they  are,  from  ruj  cause,  within  its  territory ; 
and  as  a  failure  in  this  regard  may  render  the  United  States 
answerable  and  result  in  war,  a  State  law  or  police  regula- 
tion which  operates  arbitrarily  and  unjustly  on  immigrants 
may  be  set  aside  by  the  federal  tribunals.''^  By  a  parity  of 
reasoning  Congress  may,  if  the  occasion  requires  it,  provide 
for  the  repression  or  punishment  of  acts  of  lawless  violence 
committed  on  the  persons  of  foreigners  who  are  temporarily 
within  the  limits  of  the  United  States.^ 

1  United  States  v.  Arjona,  120  U.  S.  479,  488. 

2  Chy  Lung  v.  Freeman,  92  U.  S.  275.     See  ante,  p.  472. 
8  See  Baldwin  v.  Franks,  120  U.  S.  678,  692,  696,  702. 


THE  LAW  OF  NATIONS. 


1133 


It  is  not  necessary  that  Congress  should,  in  exercising  the 
•power,  declare  that  the  offence  in  question  is  against  the  law 
of  nations.  Whether  such  is  its  character  depends  on  the 
nature  of  the  thing  done,  and  not  on  any  declaration  that 
can  be  made  by  Congress.^  If  the  act  be  in  itself,  or  in  its 
consequences,  injurious  to  a  people  with  whom  we  are  at 
peace,  or  calculated  to  disturb  the  well-being  of  society  in 
any  quarter  of  the  globe,  it  may  be  forbidden,  and  punish- 
ment inflicted  on  every  one  who  breaks  the  rule.  Counter- 
feiting the  coins  or  securities  of  a  foreign  nation  is  punishable 
under  this  principle,^  which  also  includes  the  heinous  offences 
of  manufacturing  and  shipping  infernal  machines  or  dynam- 
ite, with  a  view  to  their  being  employed  in  the  destruction 
of  property  or  life. 

The  law  of  nations  requires  every  government  to  use  due 
diligence  to  prevent  a  wrong  being  done  to  other  nations 
with  which  it  is  at  peace,  or  to  their  subjects.  The  right 
and  duty  of  a  country  to  punish  persons  who  take  advantage 
of  the  shelter  which  it  affords  to  counterfeit  the  money  of  a 
foreign  country  have  long  been  recognized,  and  may  be  en- 
forced, although  the  offender  does  not  intend  to  utter  the 
spurious  coin  at  home,  and  the  obligation  is  simply  one  of 
comity  and  good  faith.  Foreign  bills  of  exchange,  bank- 
notes, and  national  and  corporate  bonds  and  securities  have 
now  become  even  more  important  as  a  means  of  international 
intercourse  and  commerce  than  coin ;  and  as  no  government 
can  effectually  guard  itself  or  its  citizens  from  fraud  or 
forgery  beyond  its  own  jurisdiction,  it  is  the  interest  of  every 
people  to  give  other  nations  the  protection  in  this  regard 
which  they  may  need  in  their  turn.  The  act  of  May  16, 
1884,  provides  for  the  punishment  of  forging  or  counterfeit- 
ing, within  the  United  States,  of  any  bonds  or  security  of 
any  foreign  government,  or  any  bank-note  or  bill  issued  by  a 
foreign  corporation  and  intended  to  circulate  as  money,  or 
"having  in  possession  any  plate,  or  any  part  thereof,"  by 

1  The  United  States  v.  Arjona,  120  U.  S.  479,  488. 

2  See  The  Emperor  of  Austria  v.  Day  and  Kossuth,  2  Giffard,  678; 
3  De  G.  F.  &  J.  217. 


1134  OFFENCES   AGAINST 

which  such  a  forgery  may  be  committed.  The  defendant 
Arjona  was  convicted  and  sentenced  under  the  above  stat- 
ute, and  when  the  judgment  came  before  the  Supreme  Court 
of  the  United  States,  it  was  sustained  by  Chief-Justice  Waite 
in  an  able  opinion  covering  the  above  grounds.^ 

^  The  principles  on  which  this  decision  rests  were  laid  down  in  The 
Emperor  of  Austria  v.  Day  and  Kossuth,  2  Giffard,  678;  3  De  G.  F.  &  J. 
217.  The  defendant  Kossuth,  a  Hungarian  refugee,  caused  a  large  quan- 
tity of  notes  to  be  manufactured  in  England,  which,  though  not  made 
in  imitation  of  any  notes  circulating  in  Hungary,  purported  to  be  receiv- 
able as  money  in  every  Hungarian  county  and  public  pay  office,  and  to 
be  guaranteed  by  the  State.  The  plaintiff,  as  king  of  Hungary,  sued  to 
have  these  notes  delivered  up,  and  to  restrain  the  manufacture  of  others, 
alleging  that  the  issue  of  such  notes  would  injure  the  rights  of  the  plain- 
tiff by  promoting  revolution  and  disorder,  would  injure  the  State  by  the 
introduction  of  a  spurious  circulation,  and  would  thereby  also  injure  the 
plaintiff's  subjects.  What  gave  the  case  a  distinctive  character,  and  held 
the  minds  of  the  judges  in  suspense,  was  that  the  notes  were  not  forgeries 
in  the  ordinary  sense  of  the  terra,  or  made  with  the  view  of  being  uttered 
as  the  money  then  current  in  the  Austrian  empire,  and  were  on  the  con- 
trary intended  in  case  a  revolt  occurred  in  Hungai-y  to  be  issued  by  the 
insurgents  as  the  currency  of  the  revolutionary  government  which  it  was 
their  object  to  establish.  The  vice-chancellor  granted  the  injunction  on 
the  following  grounds:  "If  the  question  related  merely  to  an  affair  of 
State,  it  would  be  a  question,  not  of  law,  but  for  mere  political  discus- 
sion. But  the  regulation  of  the  coin  and  currency  of  every  State  is  a 
great  prerogative  right  of  the  sovereign  power.  It  is  not  a  mere  municipal 
right,  or  a  mere  question  of  municipal  law.  Money  is  the  medium  of 
commerce  between  all  civilized  nations ;  therefore  the  prerogative  of  each 
sovereign  State  as  to  money  is  but  a  great  public  right,  recognized  and 
protected  by  the  law  of  nations.  A  public  right  recognized  by  the  law  of 
nations  is  a  legal  right,  because  the  law  of  nations  is  part  of  the  common 
law  of  England.  These  propositions  are  supported  by  unquestionable 
authority.  In  the  modern  version  of  Blackstone's  Commentaries  (a)  it 
is  laid  down  (and  it  has  always  been  held  in  our  courts)  that  the  law  of 
nations,  whenever  any  question  arises  which  is  properly  the  object  of  its 
jurisdiction,  is  adopted  in  its  full  extent  by  the  common  law  of  England, 
and  held  to  be  a  part  of  the  law  of  the  land.  Acts  of  Parliament,  which 
have  been  from  time  to  time  made  to  enforce  this  universal  law,  or  to 
facilitate  the  execution  of  its  decisions,  are  not  considered  as  introductive 
of  any  new  rule,  but  merely  declaratory  of  the  old  fundamental  Constitu- 
tion of  the  kingdom,  without  which  it  must  cease  to  be  part  of  the  civil- 
ized world.    To  apply  these  acknowledged  principles  of  the  law  of  nations 


THE  LAW   OF  NATIONS. 


1135 


Congress  also  have  power  to  define  and  punish  piracies 
and  felonies  on  the  high  seas.  A  piracy  is  a  felony  com- 
mitted on  the  ocean  beyond  the  reach  of  any  municipal  juris- 
diction ;  but  every  felony  on  the  high  seas  is  not  necessarily 
piracy.  A  pirate  has  been  said  to  be  an  enemy  of  mankind, 
acting  without  any  national  authority,  and  making  war  for 

and  law  of  England  to  the  present  case,  it  appears  that  the  British  Parlia- 
ment, by  the  act  11  George  IV.  and  1  William  IV.,  chap.  66,  has  enacted 
that  the  forgery  or  counterfeiting  the  paper  money  of  any  foreign  sover- 
eign or  State  is  a  felony  punishable  by  the  law  of  England.  This  statute 
is  a  legislative  recognition  of  the  general  right  of  the  sovereign  authority 
in  foreign  States  to  the  assistance  of  the  laws  of  this  country  to  protect 
their  rights  as  to  the  regulation  of  their  paper  money  as  well  as  their 
coin,  and  to  punish  by  the  law  of  England  offences  against  that  power.'* 

An  appeal  having  been  taken,  the  chancellor  held  that,  although  the 
court  had  not  any  jurisdiction  to  restrain  the  commission  of  acts  which 
only  violate  the  political  privileges  of  a  foreign  sovereign,  the  manufac- 
ture of  these  notes  ought  to  be  restrained,  because  they  were  intended  to 
further  a  hostile  design  against  a  nation  with  which  the  English  govern- 
ment was  at  peace,  by  means  calculated  to  disorder  trade,  and  be  injuri- 
ous to  individuals  as  well  as  the  State.  A  wrong  done  by  an  English 
subject,  unauthorized  by  the  English  government,  in  respect  of  property 
belonging  to  a  foreign  sovereign,  either  in  his  individual  or  his  corporate 
capacity,  or  to  his  subjects,  might  be  redressed  by  the  English  courts; 
and  the  circulation  of  spurious  notes  purporting  to  be  guaranteed  by  the 
nation  which  he  represented  was  such  a  wrong. 

Lord  Campbell  said,  in  giving  judgment:  "If  the  vice-chancellor's 
decree  is  affirmed,  there  is  no  danger  of  this  country  losing  the  credit 
which  it  has  long  enjoyed  of  being  the  asylum  for  those  who  from  perse- 
cution or  revolution  have  been  driven  from  their  native  homes.  They 
enjoy  this  asylum  on  the  condition  that  while  resident  in  England  they 
enter  into  no  conspiracies  or  plots  against  existing  governments  in 
foreign  States,  which  would  be  an  infraction  of  our  municipal  law  by 
native-born  subjects.  Fitting  out  an  expedition  in  England  to  bring 
about  a  revolution  in  the  dominions  of  a  sovereign  in  alliance  with  Queen 
Victoria  would  certainly  amount  to  a  misdemeanor,  be  the  confederates 
native-born  subjects  or  aliens;  and  the  manufacture  of  twenty  tons  of 
promissory  notes  for  the  same  purpose  may  amount  to  the  same  offence. 
Therefore  I  can  consider  M.  Kossuth  no  more  an  object  of  pity  if  by  an 
injunction  he  receives  a  check  in  this  enterprise  than  the  Emperor  Louis 
I^^apoleon  would  have  been  if  by  a  criminal  prosecution  he  had  been 
stopped  in  his  enterprise  when  he  was  about  to  sail  from  the  Thames  for 
Boulogne  with  a  view  to  dethrone  Louis  Philippe." 


1136  PIRACY  IS  BOBBERY 

his  own  account  in  defiance  of  law.  Any  hostile  aggression, 
or  violent  invasion  of  right,  committed  under  these  circum- 
stances will  therefore  be  piracy  if  so  defined  by  Congress. 
In  the  exercise  of  this  power  the  law  may  speak  generally, 
or  use  precise  language  ;  and  in  the  United  States  v.  Smith,^ 
a  statute  providing  for  the  punishment  of  any  person  who 
might  commit  the  crime  of  piracy,  as  defined  by  the  law  of 
nations,  was  held  a  legitimate  exercise  of  the  power  of 
Congress. 

Mr.  Webster,  of  counsel  for  the  prisoner,  contended  that 
the  act  of  March  3, 1819,  by  which  Congress  had  provided  for 
the  punishment  of  any  person  who  should  commit  the  offence 
of  piracy  as  defined  by  the  law  of  nations,  was  not  a  legiti- 
mate exercise  of  the  power  of  Congress.  There  was  much 
vagueness  and  uncertainty  as  to  what  constituted  piracy  jure 
gentium.  In  giving  the  power  to  define,  the  Constitution 
must  be  presumed  to  have  intended  that  it  should  be  so  ex- 
ercised as  to  leave  no  doubt  of  the  precise  nature  and  limit 
of  the  crime.  Instead  of  performing  this  duty  Congress  had 
used  the  most  general  terms,  and  left  the  task  of  interpreta- 
tion to  the  judiciary.  The  court  held  that  there  was  nothing 
in  the  language  of  the  Constitution  to  preclude  Congress, 
in  prescribing  the  penalty  for  piracy,  from  designating  the 
offence,  as  was  customary  in  the  case  of  other  crimes,  by  the 
words  in  common  use,  and  allowing  the  courts  to  declare 
what  acts  were  within  the  meaning  of  the  terms  employed. 
If  a  definition  was  necessary  it  might  be  given  by  reference 
as  well  as  by  an  enumeration  of  particulars.  That  is  cer- 
tain which  can  be  ascertained ;  and  the  reference  given  by 
Congress  was  sufficiently  clear  to  furnish  a  guide  for  the 
court  and  prevent  the  decision  from  being  merely  arbitrary. 
Piracy,  agreeably  to  the  law  of  nations,  is  robbery  on  the 
high  seas. 

Although  this  definition  is  generally  accepted  it  would 
seem  to  be  too  narrow  in  making  the  character  of  the  offence 
depend  on  the  purpose  of  the  aggressor  in  the  particular  in- 

1  5  Wheaton,  153. 


ON  THE  HIGH  SEAS. 


1137 


stance,  rather  than  on  the  circumstances  and  the  effect  which 
his  act  is  calculated  to  produce.  Murder  on  the  high  seas, 
or  the  capture  of  a  vessel,  may,  in  common  with  some  other 
acts  of  violence,  be  piracy,  although  not  done  animo  furandi} 
No  doubt  plunder  is  the  object  which  pirates  generally  have 
in  view  ;  but  this  element  is  not  necessary  to  constitute  the 
crime.  Piracy  is  war  waged  feloniously  without  any  author- 
ity that  can  be  recognized  by  the  law  of  nations ;  and  an 
injury  to  life  or  property  which  would  be  an  act  of  war  be- 
tween independent  States  may  be  piratical  if  committed  with 
a  criminal  design  by  persons  navigating  the  seas  on  their 
own  account  as  enemies  of  mankind,  although  the  motive  is 
lust  or  vengeance.2 

A  ratification  by  a  duly  constituted  government  may,  un- 
der the  authority  of  Buron  v.  Denman,^  have  the  effect  of 
a  command,  in  purging  the  piivate  wrong  and  remitting  the 
injured  parties  to  their  remedy  under  the  public  law  against 
the  countr}^  which  has  assumed  the  responsibility  of  the  out- 
rage. A  capture  made  in  good  faith  jure  belli,  under  a  com- 
mission granted  by  rebels  or  insurgents  having  no  proper  or 
duly  constituted  national  authority,  is  not  necessarily  piracy.* 
But  the  case  is  obviously  different  where  there  is  not  only  a 
want  of  authority,  but  the  consciousness  of  a  criminal  design  ; 
and  in  the  United  States  v.  Klintock,  the  accused  was  con- 
victed of  piracy  for  the  felonious  capture  of  a  neutral  vessel, 
although  he  was  acting  under  a  commission  from  an  insur- 
gent Mexican  chieftain.^ 

1  See  The  Attorney-General  v.  Kwock-a-Sing,  5  L.  R.  P.  C.  App.  177. 

2  United  States  v.  Klintock,  5  Wheaton,  144;  The  United  States  v. 
The  Malek  Adhel,  2  Howard,  210. 

8  2  Excheq.  166. 

*  United  States  v.  Klintock,  4  Wheaton,  144. 

5  In  The  Attorney-General  v.  Kwock-a-Sing,  5  L.  R.  P.  C.  App.,  1873, 
the  charge  of  Sir  Charles  Hedges,  judge  of  the  High  Court  of  Admiralty, 
to  the  grand  jury,  as  reported  in  the  case  of  Rex  v.  Dawson,  13  State 
Trials,  454,  made  in  the  presence  and  with  the  approval  of  Chief-Justice 
Holt,  and  several  other  common-law  judges,  was  declared  to  be  a  correct 
exposition  of  the  law  as  to  what  constitutes  piracy  Jure  gentium.  He 
there  said:  "  Piracy  is  only  a  sea  term  for  robbery,  —  piracy  being  a  rob- 


1138  THE  SLAVE  TRADE 

It  is  proper  to  observe  that  the  slave-trade,  although 
condemned  by  the  more  enlightened  conscience  of  the  pres- 
ent day,  is  not  piracy,  or  even  felony  jure  gentium}  Slaves 
have,  from  the  remotest  antiquity  until  a  comparatively  re- 
cent period,  been  generally  regarded  as  property,  and  the 
right  of  property  implies  the  right  of  transportation  and  sale. 
A  nation  consequently  cannot  prevent  the  vessels  of  another 
nation  from  pursuing  the  slave-trade  on  the  ocean,  or  even 
exercise  the  right  of  search,  in  time  of  peace,  to  ascertain 

bery  within  the  jurisdiction  of  admiralty.  ...  If  the  mariners  of  any 
ship  shall  violently  dispossess  the  master,  and  afterwards  carry  away  the 
ship  itself,  or  any  of  the  goods,  with  a  felonious  intention,  in  any  place 
where  the  Lord  Admiral  hath  jurisdiction,  this  is  robbery  and  piracy." 
Yet  the  accused  were  held  to  have  been  guilty  of  piracy  in  violently  tak- 
ing possession  of  the  vessel  in  which  they  had  been  shipped  from  China 
to  the  West  Indies,  although  the  act  was  not  done  animo  furandi,  but  to 
regain  their  freedom,  and  they  had  been,  in  the  opinion  of  the  com't  be- 
low, virtually  enslaved  by  force  and  fraud. 

The  subject  was  philosophically  considered  in  The  United  States  v. 
The  Malek  Adhel,  12  Howard,  252,  where  the  question  arose  under  the 
act  of  March  3,  1839,  for  the  punishment  of  "piratical  aggi-essions." 
*'  Where,"  said  Story,  J.,  "  the  act  uses  the  word  'piratical '  it  does  so 
in  a  general  sense,  importing  that  the  aggression  is  unauthorized  by  the 
law  of  nations,  hostile  in  its  character,  wanton  and  criminal  in  its  com- 
mission, and  utterly  without  any  sanction  from  any  public  authority  or 
sovereign  power.  In  short,  it  means  that  the  act  belongs  to  the  class  of 
offences  which  pirates  are  in  the  habit  of  perpetrating,  whether  they  do 
it  for  the  purposes  of  plunder,  or  for  purposes  of  hatred,  revenge,  or  wan- 
ton abuse  of  power.  A  pirate  is  deemed,  and  properly  deemed,  hostis 
Jiumani  generis.  But  why  is  he  so  deemed?  Because  he  commits  hos- 
tilities upon  the  subjects  and  property  of  any  or  all  nations,  without  any 
regard  to  right  or  duty,  or  any  pretence  of  public  authority.  If  he  wil- 
fully sinks  or  destroys  an  innocent  merchant-ship,  without  any  other 
object  than  to  gratify  his  lawless  appetite  for  mischief,  it  is  just  as  much 
a  piratical  aggression,  in  the  sense  of  the  law  of  nations,  and  of  the  act  of 
Congress,  as  if  he  did  it  solely  and  exclusively  for  the  sake  of  plunder, 
lucri  causa.  The  law  looks  to  it  as  an  act  of  hostility,  and  being  com- 
mitted by  a  vessel  not  commissioned  and  engaged  in  lawful  warfare,  it 
treats  it  as  the  act  of  a  pirate,  and  of  one  who  is  emphatically  hostis 
humani  generis.^ ^ 

1  See  Buron  v.  Denman,  2  Excheq.  166 ;  Greenwood  v.  Carter,  6 
Mass.  338. 


IS  NOT  PIRACY. 


1139 


whether  the  foreign  flag  is  not  used  to  cover  the  violation  of 
her  own  laws. 

Such  was  the  view  taken  by  Lord  S  to  well  on  the  case  of 
The  Louisa,^  and  adopted  by  the  Supreme  Court  of  the 
United  States  in  The  Antelope.^  Torts  not  amounting  to 
piracy  under  the  law  of  nations  may,  however,  have  that 
character  conferred  upon  them  by  Congress ;  and  the  slave- 
trade  was  declared  to  be  piratical  and  a  capital  offence  at  an 
early  period,  although  the  statute  can  hardly  be  said  to  have 
been  carried  into  effect  before  the  Civil  War. 

The  admiralty  jurisdiction  of  the  United  States  in  civil 
cases  has,  as  we  have  seen,  been  carried  far  beyond  its  origi- 
nal bounds,  and  now  extends  to  all  the  navigable  waters  of 
the  United  States  which  are  directly,  or  through  intermediate 
channels,  a  means  of  commerce  among  the  States  and  with 
foreign  nations.^  Should  Congress  at  any  future  period  arrive 
at  the  conclusion  that  the  criminal  jurisdiction  is  coextensive 
with  the  civil,  and  carry  their  opinion  into  effect  by  a  statute, 
the  Supreme  Court  of  the  United  States  will  have  to  deter- 
mine whether  the  inference  is  just.* 

Two  things  are  essential,  as  the  law  now  stands,  to  the 
exercise  of  the  power  to  punish  piracies  and  felonies  com- 
mitted on  the  high  seas  under  the  twelfth  section  of  the  act 
of  April  30, 1790,  chap.  36,  and  the  Revised  Statutes,  section 
5339.  The  act  in  question  must  have  been  done  on  waters 
which  are  so  far  connected  with  the  sea  as  to  be  subject  to 
the  admiralty  jurisdiction  of  the  United  States,  and  it  must 
not  have  been  committed  within  the  jurisdiction  of  any  par- 
ticular State. ^  If  these  requisites  are  satisfied  the  federal 
courts  may  take  cognizance  of  the  offence,  although  it  was 
committed  on  a  strait,  bay,  or  sound,  and  not  on  the  high 
seas  in  the  full  sense  of  the  term.^ 


1  2  Dodson,  210.  2  jq  Wheaton,  66. 

«  See  ante,  p.  1004. 

*  See  the  United  States  t).  Wiltberger,  5  Wheaton,  76,  106,  note  a. 
^  United  States  v.  Bevans,  3  Wheaton,  339;  United  States  v.  Furlong, 
5  Id.  184. 

«  United  States  v.  Furlong,  5  Wheaton,  184;  see  The  United  States  v. 


1140  FELONIES  ON  THE  HIGH   SEAS. 

If  the  vessel  be  American,  and  the  offence  is  committed 
by  one  of  the  crew  or  a  passenger,  the  Circuit  Court  may 
take  cognizance  of  it,  although  the  murderer  and  the  mur- 
dered man  were  both  foreigners,  and  the  blow  was  struck  on 
board  of  a  foreign  vessel.^  As  was  observed  in  the  case 
cited,  no  difference  can  be  supposed  to  exist  between  a  mur- 
der committed  on  the  seas  by  means  of  a  gun  discharged 
from  a  vessel,  and  by  means  of  a  boat-crew  despatched  for 
that  purpose,  as  in  the  case  before  the  court.  Felonious  acts 
done  on  the  high  seas  by  persons  who  are  not  citizens  or 
subjects  of  the  United  States,  on  board  of  a  ship  or  vessel  be- 
longing exclusively  to  subjects  of  a  foreign  State,  on  persons 
who  are  not  American  citizens  or  subjects,  are  seemingly 
not  within  the  admiralty  jurisdiction  of  the  United  States, 
or  punishable  by  Congress.*^  But  such  is  not  the  case  as 
regards  felonies  committed  on  board  of  a  vessel  in  possession 
of  a  crew  acting  in  defiance  of  all  law,  and  acknowledging 
obedience  to  no  government  whatever.'^ 

Wiltberger,  5  Wheaton,  76,  for  the  meaning  of  the  term  "high  seas'* 
as  used,  without  explanatory  or  qualifying  words,  in  the  tweKth  section 
of  the  act  of  1789,  which  relates  to  the  right  of  Congress  to  punish 
crimes  committed  on  board  an  American  vessel  within  the  jurisdiction 
of  a  foreign  State. 

1  The  United  States  v.  Pirates,  5  Wheaton,  184,  194. 

2  See  The  United  States  v.  Kliutock,  5  Wheaton,  144,  151;  United 
States  V.  Palmer,  3  Wheaton,  610. 

8  See  The  United  States  v.  Klintock,  5  AVheaton,  144,  152. 


LECTURE  LIII. 


Criminal  Jurisdiction  of  the  United  States  over  the  District  of  Columbia 
and  such  other  places  as  are  ceded  by  the  States  or  acquired  by  Treaty. 
—  It  is  exclusive  of  the  States  and  so  far  National  that  while  the 
Offence  must  be  committed  within  the  Place,  the  Culprit  may  be 
arrested  wherever  he  is  found.  —  The  Acquisition  of  Land  within  a 
State  under  the  right  of  Eminent  Domain  does  not  confer  Jurisdiction 
on  the  United  States  unless  sanctioned  by  the  State  Legislature.  —  A 
State  may  reserve  its  Jurisdiction  while  ceding  the  Land,  and  when 
such  is  the  case  punish  a  Murder  committed  in  a  Fort  belonging  to 
the  United  States,  although  both  Parties  are  in  the  Military  Service 
of  the  Federal  Government.  —  Congress  have  the  Police  Power  in  the 
Territories  which  is  withheld  in  the  States,  and  may  enact  any  Law 
that  is  not  forbidden  by  the  Constitution.  —  The  Violation  of  any 
necessary  and  proper  Law  passed  by  Congress  may  be  visited  with 
such  Penalties  as  they  choose  to  inflict.  —  An  act  which  is  injurious  to 
a  State  and  to  the  United  States  may  be  punished  by  both.  —  Congress 
cannot  punish  the  Infraction  of  a  State  Law  except  by  adopting  it  as 
their  own,  nor  of  any  Law  which  is  not  within  the  Scope  of  the  Powers 
conferred  by  the  Constitution.  —  An  Indictment  involving  a  Federal 
question  may  be  removed  from  a  State  to  a  Federal  Court,  and  the 
accused  liberated  if  unconstitutionally  detained.  —  The  Supreme  Court 
has  no  general  Authority  to  revise  the  Judgments  of  the  Circuit 
Courts  in  Criminal  Cases-,  but  may  give  relief  by  a  habeas  corpus 
where  the  proceeding  is  without  Jurisdiction  or  Unconstitutional. 


Limited  as  is  the  power  of  Congress  to  prescribe  penalties 
and  inflict  punishment  within  the  States,  it  is  co-extensive 
with  the  field  of  penal  legislation  in  territories  and  places 
that  have  been  ceded  to  the  United  States  by  the  States, 
or  by  foreign  nations.  Article  I.,  section  8,  is  as  follows : 
"  Congress  shall  have  power  to  exercise  exclusive  legislation 
in  all  cases  whatsoever  over  such  district,  not  exceeding  ten 
miles  square,  as  may,  by  the  cession  of  particular  States  and 
acceptance  by  Congress,  become  the  seat  of  the  government 
of  the  United  States ;  and  to  exercise  like  authority  over  all 
places  purchased  by  the  consent  of  the  legislature  of  the 


1142  CRIMINAL  JURISDICTION 

State  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  and  other  needful  buildings."  By  Arti- 
cle IV.,  section  3,  paragraph  2,  *'  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the 
United  States." 

The  reasons  which  dictated  the  first  of  the  above  provisions 
are  obvious.  It  was  essential  that  the  United  States  should 
have  exclusive  jurisdiction  over  the  seat  of  government,  and 
equally  plain  that  they  should  be  able  to  acquire  the  entire 
control  of  places  occupied  for  governmental  purposes.  It  is 
accordingly  established  that  on  the  acquisition  of  land  within 
the  limits  of  a  State,  with  the  consent  of  its  legislature,  the 
authority  of  the  State  ceases,  and  that  of  the  United  States 
becomes  not  only  paramount,  but  absolute.  The  territory 
so  obtained  is  thenceforth  as  extraneous  to  the  State  as  if  it 
were  held  by  a  foreign  government.  Persons  residing  in  it 
are  not  citizens  of  the  State,  or  entitled  to  vote  at  any 
county,  township,  or  general  election.^  She  can  no  longer 
legislate  with  regard  to  it,  nor  can  her  courts  enforce  any 
law  or  police  regulation  that  she  may  have  made.^  It  was 
accordingly  decided  in  The  Commonwealth  v.  Clary  that  the 
courts  of  Massachusetts  could  not  take  cognizance  of  offences 
committed  upon  land  in  the  town  of  Springfield  which  had 
been  ceded  by  the  Commonwealth  to  the  government  of  the 
United  States,  and  was  occupied  by  it  as  an  arsenal.  In 
the  United  States  v.  Cornell,^  the  principle  was  applied  to 
a  murder  committed  in  a  fort  in  Newport  Harbor  belong- 
ing to  the  federal  government,  and  garrisoned  by  its  forces. 
The  ground  had  been  purchased  with  the  consent  of  Rhode 
Island,  and  it  was  held  that  the  State  had  no  jurisdiction, 
and  the  United  States  were  the  only  power  that  could  take 
cognizance  of  and  punish  the  crime. 

The  jurisdiction  of  the  United  States  over  all  places  ceded 
by  the  States,  or  acquired  with  their  consent,  is  national,  and 

1  Sinks  V.  Reese,  19  Ohio  St.  306. 

2  Mitchell  I'.  Tibbetts,  17  Pick.  298;  The  Commonwealth  v.  Clary,  8 
Mass.  72. 

8  2  Mason,  60. 


OP  THE  UNITED   STATES. 


1143 


the  laws  passed  for  carrying  it  into  effect  may  be  enforced 
throughout  the  length  and  breadth  of  the  country,  and  wher- 
ever the  sovereignty  of  the  general  government  extends.  A 
man  who  is  guilty  of  -murder  within  a  State  cannot  be 
convicted  or  executed  beyond  its  limits ;  but  the  trial  of 
offences  committed  in  places  subject  to  the  exclusive  juris- 
diction of  the  United  States  may  be  held,  and  the  sentence 
carried  into  effect,  in  any  locality  which  Congress  may 
designate.  As  Chief-Justice  Marshall  observed  in  Cohen  v. 
Virginia :  ^  — 

"  Congress  cannot  punish  felonies  generalh^  and  of  consequence 
cannot  punish  misprision  of  felony  except  on  special  grounds.  It 
is  equally  clear  that  a  State,  Maryland,  for  example,  cannot  punish 
persons  who,  in  another  State,  conceal  a  felony  committed  in  Mar}"- 
land.  And  yet  Congress,  legislating  exclusivelj'  for  a  fort,  or  for 
the  District  of  Columbia,  may  punish  those  who  out  of  that  place 
conceal  a  felon}'  committed  within  it.  The  solution  is  that  the  power 
vested  in  Congress  to  legislate  for  any  place  ceded  by  a  State  car- 
ries with  it  as  an  incident  the  right  to  make  that  power  effectual. 
If  a  felon  escapes  out  of  the  State  in  which  the  act  was  done,  the 
governor  cannot  pursue  him  into  another  State  and  apprehend  him 
there,  but  must  demand  him  from  the  executive  power  of  that  other 
State.  If  Congress  were  to  be  considered  merelj^  as  a  local  legis- 
lature for  the  fort,  or  other  place  where  an  offence  is  committed, 
the  principle  would  applj^  to  them  as  to  other  local  legislatures, 
and  a  felon  who  should  escape  out  of  the  fort  could  not  be  appre- 
hended b}'  the  marshal  except  through  a  requisition  on  the  gov- 
ernor of  the  State  where  he  was  a  fugitive  from  justice.  The 
principle  does  not  appl}*,  because  Congress  is  not  a  local  legisla- 
ture, but  exercises  this  particular  power,  like  all  its  other  powers, 
in  its  high  character  as  the  legislature  of  the  Union.  The  rule  ap- 
plies to  civil  legislation  as  well  as  criminal ;  and  an}'  law  that  Con- 
gi'ess  are  competent  to  make  for  the  District  of  Columbia  is  so  far 
a  law  for  the  entire  country  that  an  attempt  without  the  District  to 
obstruct  its  operation  is  punishable  by  Congress." 

It  has  been  at  the  same  time  decided  that  as  the  States 
may  withhold  their  consent  to  the  purchase  of  land  by  the 


6  Wheaton,  428. 


1144  CRIMINAL  JURISDICTION 

general  government,  they  may  give  it  conditionally,  and  stip- 
ulate that  the  civil  and  criminal  process  of  the  State  courts 
may  be  served,  notwithstanding  the  transfer.  Such  provi- 
sions are  intended  to  prevent  places- that  have  been  ceded  to 
the  United  States  from  becoming  asylums  for  fugitives  from 
justice,  and  do  not  derogate  from  the  effect  of  the  cession  in 
other  particulars.^  So  a  State  may,  in  granting  the  United 
States  exclusive  jurisdiction  over  a  place  within  its  limits, 
reserve  the  right  of  taxation  as  regards  private  property ; 
and  if  the  United  States  occupy  the  land  they  must  recognize 
the  condition.^ 

It  seems  to  have  been  taken  for  granted  at  the  outset  of 
the  government  that  the  United  States  could  not  acquire 
land  by  purchase  without  the  consent  of  the  State  legisla- 
tures ;  and  the  right  to  make  such  an  acquisition,  through 
the  exercise  of  the  right  of  eminent  domain,  was  first  author- 
itatively declared  in  the  case  of  Kohl  v.  The  United  States.^ 
Either  method  may  be  taken,  under  the  present  course  of 
decision,  at  the  will  of  Congress ;  but  the  effect  is  simply  to 
pass  the  title  without  touching  the  sovereignty  of  the  State, 
which  will  remain  unimpaired  unless  surrendered  by  the 
legislature,  and  may  be  exercised  not  only  in  civil  cases,  but 
for  the  punishment  of  crime.*  In  The  People  v.  Godfrey  it 
was  decided,  in  conformity  with  this  principle,  that  the  State 
of  New  York  had  exclusive  cognizance  of  a  murder  commit- 
ted in  a  fort  belonging  to  the  United  States,  but  not  ceded 
by  the  legislature,  although  both  parties  were  in  the  military 
service  of  the  United  States,  and  formed  part  of  the  garrison. 
"  To  oust  the  courts  of  New  York  of  their  jurisdiction  to 
support  and  maintain  its  laws  and  to  punish  crimes,  it  must 
be  shown  that  an  offence  committed  within  the  acknowl- 
edged limits  of  the  State  is  clearly  and  exclusively  cogni- 

1  United  States  y.  Cornell,  2  Mason,  60;  The  Fort  Leavenworth  R.  R. 
Co.  V.  Lowe,  114  U.  S.  525,  533. 

2  The  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  625. 

8  91  TJ.  S.  367;  United  States  v.  Jones,  109  U.  S.  513;  Matter  of 
Petition  of  The  United  States,  96  N.  Y.  227.     See  ante,  p.  335. 

*  The  People  v.  Godfrey,  19  Johnson,  225;  Fort  Leavenworth  Co.  v. 
Lowe,  114  U.  S.  525,  528. 


OP  THE  UNITED   STATES. 


1145 


zable  by  the  laws  and  courts  of  the  United  States.  In  The 
United  States  v.  Bevans,^  Chief-Justice  Marshall  observed 
that  to  bring  the  offence  within  the  jurisdiction  of  the  courts 
of  the  Union,  it  must  have  been  committed  out  of  the  juris- 
diction of  any  State ;  it  is  not  (he  says)  the  offence  commit- 
ted, but  the  place  in  which  it  is  committed,  which  must  be 
out  of  the  jurisdiction  of  the  State.  It  does  not  therefore 
enter  into  the  consideration  of  the  question  that  the  prisoner 
and  the  deceased  were  in  the  service  of  the  United  States 
when  the  crime  was  perpetrated."  ^ 

It  does  not  vary  the  case  that  the  United  States  were 
originally  not  only  owners  of  the  place  in  question,  but 
sovereign.  Although  the  vast  territory  lying  northwest  of 
the  Ohio  and  between  the  Mississippi  River  and  the  Rocky 
Mountains  belonged  to  the  General  Government  when  the 
Constitution  was  adopted,  and  the  numerous  States  which 
now  occupy  it  came  into  being  through  acts  of  Congress, 
they  were  admitted  on  a  footing  of  equality  with  the  original 
thirteen,  and  became,  like  them,  endowed  with  the  rights  of 
political  dominion  and  sovereignty,  subject  only  to  the  re- 
strictions expressly  or  impliedly  imposed  by  the  Constitution. 
In  admitting  Kansas,  Congress  reserved  the  tract  known  as 
"  The  Fort  Leavenworth  Reservation,"  including  Fort  Leav- 
enworth and  the  adjacent  land ;  and  in  so  doing  might  have 
stipulated  not  only  that  the  General  Government  should  re- 
tain the  title,  but  for  the  retention  of  the  entire  judicial  and 
legislative  authority  over  the  locality  so  long  as  it  should  be 
used  for  military  purposes.  As  no  such  exception  was  made 
it  became  part  of  the  territory  of  Kansas,  and  was  governed 
by  the  laws  passed  by  the  State,  and  under  the  jurisdiction 
of  her  courts.  It  followed  that  the  legislature  might  well 
confer  jurisdiction  on  the  United  States  for  general  pur- 
poses, and  yet  reserve  the  right  "  to  tax  railroad,  bridge,  or 
other  corporations,  their  franchises  and  property  within  the 
Reservation."  3 

1  3  Wheaton,  336. 

2  The  People  v.  Godfrey,  17  Johnson,  225. 

«  Fort  Leavenworth  R.  R  Co.  v.  Lowe,  114  U.  S.  525. 


114G  JURISDICTION  OF  THE  UNITED   STATES 

In  Dred  Scott  v.  Sanford,^  the  Supreme  Court  of  the 
United  States  held  that  Congress  could  not,  under  the  au- 
thority "  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  belonging 
to  the  United  States,'*  ^  enact  laws  for  the  government  of  the 
territory  acquired  by  purchase  from  foreign  governments  as 
distinguished  from  that  ceded  by  a  State,  and  that  the  right 
to  govern  resulting  from  the  right  to  acquire  by  treaty  must 
be  exercised  in  subordination  to  the  Constitution,  which  re- 
cognized and  protected  property  in  slaves.  The  effect  was  to 
annul  the  Missouri  Compromise,  and  not  only  to  throw  the 
extensive  region  north  and  west  of  the  State  of  Missouri 
open  to  slavery,  but,  by  disabling  Congress,  to  preclude  the 
amicable  adjustment  of  the  controversy,  which,  in  a  few 
years,  led  to  civil  war.  The  judgment  was  ably  controverted 
in  the  dissenting  opinion  of  Mr.  Justice  Curtis,  and  is  vir- 
tually overruled,  or  rather,  obsolete.^  .  It  is  now  established 
that  Congress  have,  as  regards  the  territorial  possessions  of 
the  United  States,  the  police  power  which  is  withheld  in  the 
States,  and  may  enact  any  law  which  they  regard  as  condu- 
cive to  morals  or  good  government,  and  prescribe  the  penalty 
for  the  breach.  In  Cannon  v.  The  United  States,*  an  act 
forbidding  any  man  to  cohabit  with  more  than  one  woman, 
whether  the  relation  was  or  was  not  sexual,  was  sustained  by 
the  Supreme  Court,  although  it  was  peculiarly  obnoxious  to 
the  inhabitants  of  Utah,  whose  customs  it  was  designed  to 
reform.^ 

The  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  of  the 

1  19  Howard,  393,  433. 

'^  Constitution,  Article  TV.,  section  3. 

8  See  Fort  Leavenworth  R.  R.  Co.  r.  Lowe,  114  U.  S.  525;  United 
States  V.  Waddell,  112  U.  S.  76,  79. 

*  116  U.  S.  55. 

6  See  Snow  i-.  The  United  States,  118  Id.  346;  120  Id.  274,  where  it 
was  held,  in  accordance  with  the  doctrine  laid  down  in  Crepps  v.  Durden, 
Cowper,  640,  1  Smith  Lead.  Cas.  (8  Am.  ed  ),  that  a  continuous  offence 
could  not  be  split  into  parts,  and  each  act  sentenced  as  a  distinct  breach 
of  the  law. 


OVER  THE   TERRITORIES. 


1147 


United  States  may  be  exercised  after  the  territory  has  been 
erected  into  a  State,  with  a  view  to  the  settlement  and  sale 
of  the  public  land  belonging  to  the  General  Government ;  ^ 
and  in  United  States  v.  Waddell,  a  conspiracy  to  intimidate, 
oppress,  and  hinder  a  citizen  in  the  exercise  of  his  right  to 
enter  on  a  tract  in  the  State  of  Arkansas  which  he  had  pur- 
chased from  the  United  States,  with  the  view  of  perfecting  his 
title  under  the  provisions  of  the  act  of  Congress,  was  held  to 
be  punishable  in  the  Circuit  Court  under  sections  2289,  2290, 
2291,  of  the  Revised  Statutes. 

In  considering  the  clauses  bearing  on  the  subject  we  are 
naturally  led  to  inquire.  Is  the  enumeration  restrictive?  Did 
the  framers  of  the  Constitution,  in  specifying  the  instances 
in  which  Congress  might  inflict  punishment,  intend  to  pre- 
clude the  exercise  of  criminal  jurisdiction  in  all  other  cases  ? 
The  passage  of  the  Alien  and  Sedition  Laws,  in  1798,  brought 
the  question  suddenly  into  relief,  and  gave  rise  to  a  bitter 
controversy,  which  was  skilfully  turned  to  account  by  Jeffer- 
son. The  last-named  enactment  rendered  writing,  printing, 
or  publishing  any  false,  scandalous,  or  malicious  writing 
against  the  Government,  Senate,  or  House,  or  the  President 
of  the  United  States,  with  intent  to  defame,  an  offence  pun- 
ishable by  fine  and  imprisonment.  The  accused  might  give 
the  truth  of  the  matter  in  evidence  as  a  justification.  The 
measure  was  unsparingly  assailed  in  debate  and  through  the 
Press ;  but  the  most  damaging  attack  came  underhand  from 
Jefferson  in  the  well-known  resolutions  drafted  by  him,  and 
adopted  by  the  Kentucky  legislature.^  It  was  contended  in 
this  paper  that  when  an  express  power  is  limited  by  the 
terms  of  the  gift,  the  intention  presumably  is  that  it  shall 
not  be  carried  further  by  implication,  as  a  means  of  execut- 
ing other  powers,  however  urgently  the  exigency  may  seem 
to  demand  such  an  extension.  The  penalties  prescribed  in 
the  Sedition  Act  were,  therefore,  liot  only  unauthorized  by 


1  United  States  v.  Waddell,  112  U.  S.  76. 

*  See  McMaster's  History  of  the  American  People,  vol.  ii.  pp.  396,  419. 
See  an/tf,  p.  115. 
voi*  II.  —  32 


1148  POWER  TO   PUNISH  IMPLIED   IN   THE 

the  Constitution,  but  the  power  to  inflict  them  was  impliedly 
withheld.  The  meaning  of  the  instrument,  as  read  in  the 
light  of  the  Tenth  Amendment,  —  that  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively,  or  to 
the  people,  —  was  that  the  right  to  provide  for  the  welfare 
of  the  community  by  penal  legislation  should  remain  in  the 
States,  and  save  in  the  enumerated  instances  be  exercised  by 
them  only. 

Such  substantially  was  the  argument,  which  is  undeniably 
strong,  and  might  be  conclusive  were  it  not  for  a  clause  in 
the  Constitution  which  points  so  clearly  in  another  direction 
as  to  leave  no  doubt  of  the  meaning  of  the  instrument  as  a 
whole.^  Under  the  eighth  section  of  the  first  article  Con- 
gress have  authority  "  to  make  all  laws  which  shall  be  neces- 
sary and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  in  the  United  States,  or 
any  department  or  officer  thereof."  A  law  is  a  compulsory 
rule  of  action.  Rules  that  may  be  disregarded  with  impu- 
nity cannot  properly  be  styled  laws.  It  is  therefore  implied 
in  every  gift  of  the  law-making  power  that  the  legislator 
may  prescribe  the  penalty  for  the  violation  of  the  statutes 
which  he  enacts.  In  cases  between  individuals  the  compen- 
sation awarded  to  the  injured  party  is  ordinarily  sufficient  to 
prevent  a  repetition  of  the  offence.  But  where  the  welfare 
of  the  community  is  involved,  and  the  wrong,  as  often  hap- 
pens, is  irreparable,  the  law  would  be  without  a  sanction 
unless  the  offender  could  be  made  penall}^  answerable.  It 
is  accordingly  well  settled  that  wherever  Congress  have  au- 
thority to  legislate,  they  may  enforce  obedience  by  fine,  by 
imprisonment,  or  even  by  death.  From  the  authority  to 
establish  post-offices  and  post-roads  comes,  as  Chief-Justice 
Marshall  pointed  out,  the  right  to  punish  the  offence  of  rob- 
bing the  mail ;  while  that  to  call  forth  the  militia  carries 
with  it  an  implied  power  to  try  by  court-martial  and  sentence 
every  one  who  does  not  obey  the  call.^     And  as  the  safety 

1  The  Legal  Tender  Cases,  12  Wallace,  457,  535. 

2  See  McCuUoch  v.  The  State  of  Maryland,  4  Wheaton,  316,  416. 


POWER   TO   LEGISLATE.  1149 

and  regularity  of  commercial  transactions  —  which  the  Consti- 
tution intended  to  secure  in  giving  the  power  of  coinage  — 
might  be  endangered  if  counterfeit,  base,  or  spurious  coins 
could  be  brought  into  the  United  States,  Congress  may  make 
the  importation  of  such  coins  a  crime  punishable  with  impris- 
onment.^ In  The  United  States  v.  Marigold,^  the  court  said 
that  the  statute  in  question  was  based  on  the  authority  of 
Congress  to  coin  money,  and  their  corresponding  obligation 
to  preserve  the  purity  of  the  currency  unimpaired.  If  coun- 
terfeit or  debased  money  could  be  brought  from  abroad  and 
thrown  into  the  channels  of  circulation,  this  duty  could  not 
be  effectually  performed.  There  was  consequently  a  right 
to  provide  against  the  danger  by  law,  and  to  make  that  law 
obligatory  on  the  citizen. ^ 

The  criminal,  like  the  civil,  jurisdiction  of  the  federal 
courts  may  be  exercised  wherever  the  case  arises  under  the 
laws  of  the  United  States,  however  deeply  it  may  trench 
on  the  powers  which  are  reserved  to  the  States  and  are  ordi- 
narily beyond  the  scope  of  the  General  Government.     The 

1  The  Legal  Tender  Cases,  110  U.  S.  457,  470.     See  ante,  p.  116. 

2  9  Howard,  560. 

*  Congress  are  expressly  authorized  "to  provide  for  the  punishment 
of  counterfeiting  the  securities  and  current  coin  of  the  United  States, 
and  to  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  laws  of  nations."  It  is  also  empowered  to 
declare  the  punishment  of  treason,  and  provision  is  made  for  impeach- 
ments. This  is  the  extent  of  power  to  punish  crime  expressly  conferred. 
It  might  be  argued  that  the  expression  of  these  limited  powers  implies 
an  exclusion  of  all  other  subjects  of  criminal  legislation.  Such  is  the 
argument  in  the  present  cases.  It  is  said,  because  Congress  is  authorized 
to  coin  money  and  regulate  its  value,  it  cannot  declare  anything  other 
than  gold  and  silver  to  be  money,  or  make  it  a  legal  tender.  Yet  Con- 
gress, by  the  act  of  April  30,  1790,  entitled  "  An  act  more  effectually  to 
provide  for  the  punishment  of  certain  crimes  against  the  United  States," 
and  the  supplementary  act  of  March  3,  1825,  defined  and  provided  for 
the  punishment  of  a  large  class  of  crimes  other  than  those  mentioned  in 
the  Constitution ;  and  some  of  the  punishments  prescribed  are  manifestly 
not  in  aid  of  any  single  substantive  power.  No  one  doubts  that  this  was 
rightfully  done,  and  the  power  thus  exercised  has  been  affirmed  by  this 
court  in  United  States  v.  Marigold,  9  Howard,  560."  See  Legal  Tender 
Cases,  12  Wallace,  457,  535. 


1150  ACTS   INJURIOUS  TO  A  STATE  AND  THE 

point  arose  in  Ex  parte  Virginia,^  under  an  act  of  Congress 
providing  that  any  officer  or  other  person  intrusted  with  the 
duty  of  selecting  or  summoning  jurors,  and  who  "  shall  ex- 
clude or  fail  to  summon  any  citizen  for  or  on  account  of  race, 
color,  or  previous  condition  of  servitude,  shall,  on  conviction 
thereof,  be  deemed  guilty  of  a  misdemeanor,  and  fined  not 
less  than  $5,000."  A  judge  of  the  County  Court  of  Pittsyl- 
vania, in  the  State  of  Virginia,  was  arrested  and  held  in 
custody  for  an  offence  against  this  statute.  He  applied  to 
the  Supreme  Court  of  the  United  States  for  a  habeas  corpus^ 
which  was  refused  on  the  ground  that  Congress  might,  agree- 
ably to  the  express  words  of  the  Fourteenth  Amendment, 
enforce  its  provisions  by  appropriate  legislation,  and  that  the 
statute  did  not  transcend  the  authority  so  conferred.  Al- 
though the  duty  of  summoning  a  jury  had  been  intrusted  to 
a  judge,  it  was  simply  ministerial,  and  must  consequently  be 
executed  in  conformity  with  the  laws  of  the  State  and  of  the 
Union,  and  with  a  liability  to  punishment  for  disobedience.^ 

The  principle  has  led  to  a  somewhat  singular  result,  which 
the  framers  of  the  Constitution  may  not  have  anticipated. 

1  100  U.  S.  339.     See  ante,  p.  1070. 

2  In  Strauder  v.  West  Virginia,  100  U.  S.  303,  the  Fourteenth  Amend- 
ment, and  the  laws  which  have  been  enacted  for  the  purpose  of  carrying 
it  into  eifect,  were  vindicated  on  the  ground  that  "  the  colored  race,  as  a 
race,  was  abject  and  ignorant,  and  in  that  condition  was  unfitted  to  com- 
mand the  respect  of  those  who  had  superior  intelligence.  Their  training 
had  left  them  mere  children,  and  as  such  they  needed  the  protection  which 
a  wise  government  extends  to  those  who  are  unable  to  protect  themselves. 
...  It  was  in  view  of  these  considerations  that  the  Fourteenth  Amend- 
ment was  framed  and  adopted."  But  for  the  gravity  of  the  occasion,  and 
of  the  learned,  sincere,  and  very  able  judge  by  whom  the  opinion  was  de- 
livered, such  reasons  might  well  have  been  deemed  ironical.  A  juror  is  a 
judge  who  sits  for  the  determination  of  the  questions  which  most  concern 
the  well-being  of  society  and  of  individuals ;  from  whose  decision  there  is 
no  appeal  save  to  a  tribunal  of  the  same  kind,  and  composed  of  like  ele- 
ments ;  and  on  whose  integrity,  information,  and  intelligence  every  man 
in  the  community  may,  in  the  course  of  events,  have  to  rely  for  his  rep- 
utation, life,  liberty,  or  fortune  ;  and  weakness,  ignorance,  and  even 
childlike  simplicity,  are  surely  insuflacient  grounds  for  the  admission  of 
any  class  of  men  to  such  an  office. 


UNITED  STATES  ARE  PUNISHABLE  BY  BOTH.       1151 

We  have  seen  that  the  legislative  power  of  the  States  and 
the  General  Government,  though  exercised  for  different  pur- 
poses, is  concurrent,  and  extends  to  every  person  and  thing 
within  the  boundaries  of  the  United  States.  It  follows  that 
when  an  act  is  injurious  to  both  governments  it  may  be  for- 
bidden by  both,  and  each  may  punish  an  infringement  of  the 
rule.  Although  breaches  of  the  peace  of  every  grade,  from 
assault  and  battery  up  to  murder,  are  violations  of  the  local 
laws,  and  cognizable  as  such  only  in  the  State  tribunals, 
they  may,  when  committed  on  the  person  of  an  officer  of  the 
General  Government,  be  offences  against  the  United  States 
which  cannot  be  suffered  to  go  unpunished  without  endan- 
gering the  efficiency  and  existence  of  the  federal  bond.  The 
necessity  and  duty  of  legislating  for  the  prevention  of  such 
wrongs  is  obvious,  and  the  power  has  been  repeatedly  exer- 
cised by  Congress.  The  Force  Bill,  passed  March  2,  1863, 
to  protect  the  revenue  officers  of  the  United  States  against 
the  nullification  ordinances  of  South  Carolina,  was  an  in- 
stance of  this  kind  ;  and  another  may  be  found  in  the  acts 
of  1863  and  1864,  rendering  it  a  criminal  offence  to  assault 
any  officer  while  engaged  in  the  execution  of  the  draft,  and 
providing,  if  the  injuries  so  inflicted  result  in  death,  it  shall 
be  murder,  and  punishable  accordingly.  In  every  such  case 
the  criminal  is  answerable  to  the  United  States  as  well  as  the 
State,  and  an  acquittal  or  conviction  by  the  courts  of  one 
government  will  not  be  a  defence  to  a  proceeding  instituted 
by  the  other.^  So  while  the  State  may  provide  for  the  purity 
and  freedom  of  the  election  of  members  of  the  House  of  Rep- 
resentatives, a  like  power  may  be  exercised  by  Congress ;  ^ 
and  if  the  offender  is  doubly  punished  he  cannot  complain 
of  a  result  which  is  due  to  his  having  adopted  a  wrongful 
course,  attended  with  wide-spreading  and  injurious  conse- 
quences. 

Conversely,  a  State  may  well  punish  acts  which  are  inju- 

1  Scott  V.  The  United  States,  3  Wallace,  642;  Moore  v.  The  State  of 
Illinois,  14  Howard,  13;  Ex  parte  Siebold,  100  U.  S.  371. 

2  Ex  parte  Yarbrough,  110  U.  S.  651,  661. 


1152  ACTS  INJURIOUS  TO  A  STATE  AND  THE 

rious  to  itself  or  its  citizens,  although  they  are  also  forbidden 
and  punishable  by  the  United  States.^  In  Fox  v.  Ohio,  the 
accused  was  sentenced  for  passing  false  coin  with  an  intent  to 
defraud,  and  in  Moore  v.  The  People,^  for  harboring  a  fugitive 
slave  contrary  to  the  statutes  of  Illinois,  notwithstanding  the 
objection  that  a  like  punishment  might  have  been  inflicted 
under  the  acts  of  Congress.  Admitting  that  the  plaintiff  in 
error  would  be  liable  to  an  action  under  the  act  of  Congress, 
for  the  same  acts  of  harboring  and  preventing  the  owner 
from  retaking  his  slave,  it  did  not  follow  that  he  would  be 
twice  punished  for  the  same  offence.  "  An  offence,  in  its 
legal  signification,  means  the  transgression  of  a  law.  A  man 
may  be  compelled  to  make  reparation  in  damages  to  the  in- 
jured party,  and  be  liable  also  to  punishment  for  a  breach  of 
the  public  peace  in  consequence  of  the  same  act;  and  may 
be  said,  in  common  parlance,  to  be  twice  punished  for  the 
same  offence.  Every  citizen  of  the  United  States  is  also  a 
citizen  of  a  State  or  Territory.  He  may  be  said  to  owe  alle- 
giance to  two  sovereigns,  and  may  be  liable  to  punishment 
for  an  infraction  of  the  laws  of  either.  The  same  act  may 
be  an  offence  or  transgression  of  the  laws  of  both.  Thus,  an 
assault  upon  the  marshal  of  the  United  States,  and  hindering 
him  in  the  execution  of  legal  process,  is  a  high  offence 
against  the  United  States,  for  which  the  perpetrator  is  liable 
to  punishment ;  and  the  same  act  may  be  also  a  gross  breach 
of  the  peace  of  the  State,  —  a  riot,  assault,  or  a  murder,  — 
and  subject  the  same  person  to  a  punishment,  under  the 
State  laws,  for  a  misdemeanor  or  felony.  That  either  or 
both  may  (if  they  see  fit). punish  such  an  offender  cannot  be 
doubted.  Yet  it  cannot  be  truly  averred  that  the  offender 
has  been  twice  punished  for  the  same  offence;  but  only  that 
by  one  act  he  has  committed  two  offences,  for  each  of  which 
he  is  justly  punishable.  He  could  not  plead  the  punishment 
by  one  in  bar  to  a  conviction  by  the  other;  consequently, 
this  court  has  decided,  in  the  case  of  Fox  v.  The  State  of 
Ohio,^  that  a  State  may  punish  the  offence  of  uttering  or 

1  Fox  V.  Ohio,  5  Howard,  432 ;  Houston  v.  Moore,  5  Wheaton,  49. 

2  14  Howard,  13.  «  5  Howard,  432. 


UNITED   STATES   ARE   PUNISHABLE  BY  BOTH.        1153 

passing  false  coin,  as  a  cheat  or  fraud  practised  upon  its  citi- 
zens; and  in  the  case  of  The  United  States  v.  Marigold,^ 
that  Congress,  in  the  proper  exercise  of  its  authority,  may- 
punish  the  same  act  as  an  offence  against  the  United 
States."  2 

It  is  established  under  the  same  principle  that  Congress 
may  pass  laws  for  the  protection  of  citizens  or  aliens  against 
intimidation,  injury,  or  oppression,  in  the  exercise  of  any 
right  or  privilege  secured  by  the  Constitution  or  laws  of  the 
United  States,  or  because  of  their  having  exercised  the 
same.^  In  The  United  States  v.  Waddell  the  defendant  was 
convicted,  under  such  a  statute,  for  a  conspirac}'^  to  prevent 
the  prosecutor  from  entering  on  the  land  which  he  had  pur- 
chased from  the  United  States,  to  perfect  his  title  to  it  as  a 
homestead.  And  in  The  United  States  v.  Yarbrough  the 
principle  was  held  broad  enough  to  sustain  a  conviction  for 
having  conspired  to  intimidate  a  "  citizen  of  African  de- 
scent "  in  the  exercise  of  his  right  to  vote  for  a  member  of 
Congress,  as  given  by  the  laws  of  the  State,  and  guaranteed 
by  the  Fifteenth  Amendment.  "Wherever  the  function  in 
which  the  part}^  is  engaged,  or  the  right  which  he  is  about 
to  exercise,  depends  on  the  laws  of  the  United  States,  it  is 
the  duty  of  the  government  to  see  that  he  may  act  freely, 
and  to  protect  him  from  violence  while  so  doing."  * 

The  police  power  is,  as  we  have  seen,  generally  reserved 
to  the  States,  and  cannot  be  exercised  by  the  United  States 
except  to  protect  the  government,  to  restrain  the  States,  to 
guard  the  rights  and  privileges  conferred  by  the  Constitu- 
tion, to  regulate  the  Territories,  or  to  punish  certain  enu- 
merated offences  which  concern  the  nation  as  a  whole.^  An 
act  of  Congress  which  transcends  these  bounds,  by  imposing 


1  9  Howard,  560. 

2  Moore  v.  The  People,  14  Howard,  13. 

8  The  United  States  v.  Waddell,  112  U.  S.  76;  Ex  parte  YdixhroM^h, 
110  Id.  651.     See  Baldwin  v.  Franks,  120  Id.  678,  685,  705. 

<  Ex  parte  Yarbrough,  110  U.  S.  565;  United  States  v.  Waddell,  112 
Id.  76,  80. 

fi  See  ante,  p.  1120. 


1154  BEMOVAL  OF  INDICTMENTS. 

penalties  for  a  conspiracy  to  deprive  any  person  of  the  equal 
protection  of  the  laws,  will  consequently  be  void,  as  embracing 
"  those  who  conspire  to  deprive  him  of  his  rights  under  the 
laws  of  a  State,  and  those  who  conspire  to  deprive  him  of  his 
rights  under  the  Constitution,  laws,  and  treaties  of  the  United 
States.^  The  rule  that  the  constitutional  part  of  a  statute 
may  be  enforced,  and  the  unconstitutional  part  rejected,  is 
inapplicable,  unless  the  parts  are  so  distinctly  separable  that 
each  can  stand  alone,  and  the  court  is  able  to  see  and  declare 
that  the  intention  of  the  legislature  was  that  the  part  pro- 
nounced valid  should  be  enforceable,  even  though  the  other 
part  should  fail."^ 

Another  result  of  our  dual  system  may  be  noticed  in  this 
connection.  A  suit  which  depends,  as  regards  the  plaintiff 
or  defendant,  on  an  authority  conferred  by  the  United  States 
is  within  the  grant  of  judicial  power,  and  may  be  brought  by 
removal  or  appeal  before  a  federal  tribunal.  The  rule  applies 
in  criminal  cases  as  well  as  civil,  because  the  States  would 
otherwise  be  in  one  branch  of  their  jurisdiction  paramount, 
and  might  impede  the  operations  of  the  federal  government 
by  subjecting  its  ofl&cers  to  a  prosecution  that  would  result  in 
imprisonment  or  death.  An  indictment  which  involves  a  fed- 
eral question  may,  consequently,  be  transferred  to  a  circuit 
court  of  the  United  States,  although  the  offence  charged  is  a 
breach  of  the  local  law  and  not  punishable  by  Congress. 
Under  these  circumstances  the  federal  courts  adopt  the  State 
laws  as  the  rule  of  their  proceedings  so  far  as  they  are 
consistent  with  the  Constitution  of  the  United  States,  and 
give  such  a  sentence  as  the  State  court  ought  to  have  pro- 
nounced had  the  case  gone  before  it  to  judgment.^ 

If  State  sovereignty  has  been  restricted  through  the  devel- 
opment of  the  federal   government,   it  has  generally  been 

1  Baldwin  v.  Franks,  120  U.  S.  678,  685.      See  ante,  p.  442. 

2  United  States  v.  Reese,  92  U.  S.  214;  Trade  Mark  Cases,  100  Id.  82; 
Virginia  Coupon  Cases,  114  Id.  269,  305;  Baldwin  v.  Franks,  120  Id. 
678,  689.  See  The  Packet  Co.  v.  Keokuk,  95  Id.  80;  Presser  v.  Illinois, 
116  Id.  252. 

8  Tennessee  v.  Davis,  100  U.  S.  260. 


REMOVAL   OF   INDICTMENTS. 


1155 


owing  to  an  aggression  on  the  part  of  the  States ;  and  the 
first  exercise  of  the  right  of  removal  in  criminal  cases  was 
the  Force  Bill,  passed  in  1832,  during  the  presidency  of 
Jackson,  in  response  to  a  law  of  South  Carolina  rendering  it 
penal  for  the  revenue  officers  to  collect  the  duties  imposed 
by  Congress.  No  case  was,  I  believe,  actually  removed  un- 
der the  provisions  of  this  bill,  and  the  power  lay  dormant 
until  it  was  called  forth  by  the  disordered  condition  of  the 
country  at  the  close  of  the  Civil  War.  It  concerns  the  gov- 
ernment in  a  point  which  is  more  essential  to  the  effectual 
exercise  of  its  powers  than  the  removal  of  any  civil  cause. 
If  the  officers  of  the  United  States  could  be  indicted  before 
an  adverse  jury,  and  judges  appointed  by  a  hostile  majority, 
for  acts  done  in  the  performance  of  their  duty,  it  might  be 
difficult  to  collect  the  revenue,  or  enforce  any  unpopular 
law.i  As  was  said  in  Martin  v.  Hunter,^  "The  General 
Government  must  cease  to  exist  whenever  it  loses  the  power 
of  protecting  itself  in  the  exercise  of  its  constitutional  pow- 
ers." It  can  act  only  through  its  officers  and  agents,  and 
they  must  act  within  the  States.  If,  when  thus  acting,  and 
within  the  scope  of  their  authority,  those  officers  can  be 
arrested  and  brought  to  trial  in  a  State  court  for  an  alleged 
offence  against  the  law  of  the  State,  yet  warranted  by  the 
federal  authority  they  possess,  and  if  the  United  States  are 
powerless  to  interfere  at  once  for  their  protection,  the  opera- 
tions of  the  General  Government  may  at  any  time  be  arrested 
at  the  will  of  one  of  its  members.  The  legislation  of  a  State 
may  be  unfriendly.  It  may  affix  penalties  to  acts  done  un- 
der the  immediate  direction  of  the  national  government,  and 
in  obedience  to  its  laws.  It  may  deny  the  authority  con- 
ferred by  those  laws.  The  State  court  may  administer,  not 
only  the  laws  of  the  State,  but  equally  federal  law,  in  such 
a  manner  as  to  paralyze  the  operations  of  the  government. 
And  even  if  after  trial  and  final  judgment  in  the  State  court 
the  case  can  be  brought  into  the  United  States  court  for  re- 
view, the  officer  is  withdrawn  from  the  discharge  of  his  duty 


1  Tennessee  v.  Davis,  100  U.  S.  265. 


2  1  Wheaton,  363. 


1156  REMOVAL  OF  INDICTMENTS. 

during  the  pendency  of  the  prosecution,  and  the  exercise  of 
acknowledged  federal  power  arrested.  We  do  not  think  such 
an  element  of  weakness  is  to  be  found  in  the  Constitution. 

In  Tennessee  v.  Davis,  the  court  held  that  an  indictment 
against  a  deputy-collector  of  the  United  States  for  a  homicide 
committed  in  the  discharge  of  his  official  duties  might  be 
transferred,  under  section  643  of  the  Revised  Statutes,  to  the 
Circuit  Court  for  the  Middle  District  of  Tennessee,  which 
would  adopt  and  apply  the  laws  of  the  State  in  so  far  as 
they  were  in  accordance  with  the  Constitution  of  the  United 
States,  precisely  as  the  State  court  would,  or  ought,  to  have 
doae  had  the  cause  not  been  withdrawn  from  its  jurisdiction. 

''  '  Criminal  and  civil  cases  are  equallj'  within  the  judicial  domain 
of  the  United  States,  and  there  is  nothing  in  the  terms  of  the  grant 
to  indicate  that  whatever  power  may  be  exerted  over  a  civil  case 
may  not  also  be  exerted  in  a  criminal  one.  A  case  under  the  Con- 
stitution and  laws  of  the  United  States  may  as  well  arise  in  a 
criminal  prosecution  as  in  a  suit  brought  to  vindicate  a  private 
right.'  What  constitutes  such  a  case  was  defined  in  Cohen  v.  Vir- 
ginia.^ It  is  not  merel}'  one  where  a  part}-  comes  into  court  to 
demand  something  conferred  upon  him  by  the  Constitution,  or  by 
a  law  or  treat}"  of  the  United  States.  A  case  consists  of  the  right 
of  one  part}^  as  well  as  of  the  other,  and  ma}"  truly  be  said  to  arise 
under  the  Constitution,  or  a  law  or  a  treaty  of  the  United  States, 
whenever  its  correct  decision  depends  upon  the  construction  of 
either.  Cases  arising  under  the  laws  of  the  United  States  are  such 
as  grow  out  of  the  legislation  of  Congress,  whether  they  constitute 
the  right,  or  privilege,  or  claim,  or  protection,  or  defence  of  the 
party,  in  whole  or  in  part,  ])y  whom  they  are  asserted.^  It  was 
said  in  Osborn  v.  The  Bank  of  the  United  States  :  ^  '  When  a  ques- 
tion to  which  the  judicial  power  of  the  Union  is  extended  by  the 
Constitution  forms  an  ingredient  of  the  original  cause,  it  is  in  the 
power  of  Congress  to  give  the  circuit  courts  jurisdiction  of  that 
cause,  although  other  questions  of  fact  or  of  law  may  be  involved 
in  it.'    And  a  case  arises  under  the  laws  of  the  United  States 

1  6  Wheaton,  379. 

2  Story  on  the  Constitution,  section  1647;  6  Wheaton,  379. 

3  9  Wheaton,  738. 


REMOVAL  OF   INDICTMENTS. 


1157 


when  it  arises  out  of  the  implication  of  the  law.  Chief- Justice 
Marshall  said,  in  the  case  last  cited  :  '  It  is  not  unusual  for  a  legis- 
lative act  to  involve  consequences  which  are  not  expressed.  An 
officer,  for  example,  is  ordered  to  arrest  an  individual.  It  is  not 
necessarj',  nor  is  it  usual,  to  say  that  he  shall  not  be  punished  for 
obe3'ing  this  order.  His  security  is  implied  in  the  order  itself.  It 
is  no  unusual  thing  for  an  act  of  Congress  to  implj',  without  ex- 
pressing, this  very  exemption  from  State  control.  .  .  .  The  collec- 
tors of  the  revenue,  the  carriers  of  the  mail,  the  mint  establishment, 
and  all  those  institutions  which  are  public  in  their  nature,  are  ex- 
amples in  point.  It  has  never  been  doubted  that  all  who  are 
employed  in  them  are  protected  while  in  the  line  of  their  duty ; 
and  yet  this  protection  is  not  expressed  in  any  act  of  Congress. 
It  is  incidental  to,  and  is  implied  in,  the  several  acts  by  which 
those  institutions  are  created ;  and  is  secured  to  the  individuals 
employed  in  them  by  the  judicial  power  alone,  —  that  is,  the  judi- 
cial power  is  the  instrument  employed  by  the  government  admin- 
istering this  security.' 

"  The  constitutional  right  of  Congress  to  authorize  the  removal 
before  trial  of  civil  cases  arising  under  the  laws  of  the  United 
States  has  long  since  passed  beyond  doubt.  It  was  exercised  al- 
most contemporaneously  with  the  adoption  of  the  Constitution,  and 
the  power  has  been  in  constant  use  ever  since.  The  Judiciary  Act 
of  Sept.  24,  1789,  was  passed  by  the  first  Congress, — many  mem- 
bers of  which  had  assisted  in  framing  the  Constitution  ;  and  though 
some  doubts  were  soon  after  suggested  whether  cases  could  be 
removed  from  State  courts  before  trial,  those  doubts  soon  disap- 
peared. Whether  removal  from  a  State  to  a  federal  court  is  an 
exercise  of  appellate  jurisdiction,  as  laid  down  in  Stor3''s  Commen- 
taries on  the  Constitution,  section  1745,  or  an  indirect  mode  of 
exercising  jurisdiction,  as  intimated  in  Railwa}'  Co.  v.  Whitton,^ 
we  need  not  now  inquire.  Be  it  one  or  the  other,  it  was  ruled  in 
the  case  last  cited  to  be  constitutional.  But  if  there  is  power  in 
Congress  to  direct  a  removal  before  trial  of  a  civil  case  arising 
under  the  Constitution  or  laws  of  the  United  States,  and  direct  its 
removal  because  such  a  case  has  arisen,  it  is  impossible  to  see  why 
the  same  power  may  not  order  the  removal  of  a  criminal  prosecu- 
tion when  a  similar  case  has  arisen  in  it.  The  judicial  power  is 
declared  to  extend  to  all  cases  of  the  character  described,  making 

1  13  Wallace,  270. 


1158  BEMOVAL  OF  INDICTMENTS. 

110  distinction  between  civil  and  criminal;  and  the  reasons  for 
conferring  upon  the  courts  of  the  national  government  superior 
jurisdiction  over  cases  involving  authorit}-  and  rights  under  the 
laws  of  the  United  States  are  equally  applicable  to  both.  As  we 
have  already  said,  such  a  jurisdiction  is  necessary  for  the  pres- 
ervation of  the  acknowledged  powers  of  the  government.  It  is 
essential  also  to  a  uniform  and  consistent  administration  of  na- 
tional laws.  It  is  required  for  the  preservation  of  that  supremacy 
which  the  Constitution  gives  to  the  General  Government  by  de- 
claring that  the  Constitution,  and  laws  of  the  United  States  made 
in  pursuance  thereof,  and  the  treaties  made  or  to  be  made  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land,  and  the  judges  in  every  State  shall  be  bound  thereby-,  anj'- 
thing  in  the  constitution  or  laws  of  any  State  to  the  contrary 
thereof  notwithstanding.  The  founders  of  the  Constitution  could 
never  have  intended  to  leave  to  the  possibly  varying  decisions  of 
the  State  courts  what  the  laws  of  the  government  it  established 
are,  what  rights  they  confer,  and  what  protection  shall  be  extended 
to  those  who  execute  them.  If  they  did,  where  is  the  supremacy 
over  those  questions  vested  in  the  government  by  the  Constitution? 
If,  whenever  and  wherever  a  case  arises  under  the  Constitution  and 
laws  or  treaties  of  the  United  States,  the  national  government  can- 
not take  control  of  it,  whether  it  is  civil  or  criminal,  in  any  stage 
of  its  progress,  its  judicial  power  is  at  least  temporarily  silenced, 
instead  of  being  at  all  times  supreme.  In  criminal,  as  well  as  civil, 
proceedings  in  State  courts,  cases  under  the  Constitution  and  laws 
of  the  United  States  might  have  been  expected  to  arise,  as  in  fact 
the}'  do.  Indeed,  the  powers  of  the  General  Government,  and  the 
lawfulness  of  the  authorit}^  exercised  or  claimed  under  it,  is  quite 
as  frequently  in  question  in  criminal  cases  in  State  courts  as  they 
are  in  civil  cases,  in  proportion  to  their  number.  It  is  immaterial 
that  the  act  authorizing  the  removal  does  not  prescribe  the  pro- 
cedure, or  declare  according  to  what  law  the  trial  shall  be  con- 
ducted.    Such  an  omission  may  be  supplied  by  intendment. 

"The  circuit  courts  of  the  United  States  have  all  the  appli- 
ances which  are  needed  for  the  trial  of  any  criminal  case.  The}" 
adopt  and  apply  the  laws  of  the  State  in  civil  cases,  and  there  is 
no  more  difficulty  in  administering  the  State's  criminal  law.  They 
are  not  foreign  courts.  The  Constitution  has  made  them  courts 
within  the  States  to  administer  the  laws  of  the  States  in  certain 
cases  ;  and  so  long  as  thej^  keep  within  the  jurisdiction  assigned  to 


REMOVAL  OF  INDICTMENTS. 


1159 


them  their  general  powers  are  adequate  to  the  trial  of  anj-  case. 
The  supposed  anomaly  of  prosecuting  offenders  against  the  peace 
and  dignity  of  a  State  in  tribunals  of  the  General  Government 
grows  entirely  out  of  the  division  of  powers  between  that  govern- 
ment and  the  government  of  a  State ;  that  is,  a  division  of  sover- 
eignty over  certain  matters.  When  this  is  understood  (and  it  is 
time  it  should  be)  it  will  not  appear  strange  that,  even  in  cases 
of  criminal  prosecutions  for  alleged  offences  against  a  State  in 
which  arises  a  defence  under  United  States  law,  the  General  Gov- 
ernment should  take  cognizance  of  the  case  and  try  it  in  its  own 
courts,  according  to  its  own  forms  of  proceeding." 

It  has  also  been  decided  that  the  power  of  removal  may  be 
exercised  where  a  constitutional  requirement  is  violated  to 
the  injury  of  the  accused.  In  Strauder  v.  West  Virginia,^  a 
negro  who  had  been  arraigned  and  was  about  to  be  tried  for 
murder  before  a  jury  that  had  been  summoned  and  impan- 
elled under  a  State  law  which  restricted  the  duty  and  privi- 
lege of  serving  as  jurors  to  white  male  citizens,  was  allowed 
to  transfer  the  cause  to  the  Circuit  Court  of  the  United 
States,  under  the  provision  of  the  Revised  Statutes,  section 
641,  that  where  "any  civil  suit  or  criminal  proceeding  is 
commenced  for  any  cause  whatsoever,  any  one  who  is  de- 
nied, or  who  cannot  enforce,  in  the  judicial  tribunals  of  the 
State,  any  right  secured  to  him  by  any  law  providing  for  the 
equal  civil  rights  of  citizens  of  the  United  States,  such  suit 
or  proceeding  may  be  removed  before  trial  to  the  next  cir- 
cuit court  of  the  United  States."  .This  law  was  founded  on 
the  language  of  the  Fourteenth  Amendment :  "  No  State 
shall  make  or  enforce  any  law  which  shall  curtail  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  its  laws.  .  .  .  The 
Congress  shall  have  power  to  enforce  by  legislation  the  pro- 
visions of  this  act."  The  court  held  that  the  object  of  the 
amendment  was  that  all  citizens  should  stand  on  an  equality 
before  the  law,  and  that  no  discrimination  should  be  made 

1  100  U.  S.  303.     See  ante,  pp.  524,  860,  867. 


1160  REMOVAL  OF  INDICTMENTS. 

because  of  race  or  color.  The  question  was  not  whether  a 
negro  had  a  right  to  a  jury  composed  in  whole  or  in  part  of 
persons  of  his  own  race,  but  whether  all  persons  of  that  race 
could  be  excluded  by  State  legislation,  so  that  no  colored 
man  could  by  any  possibility  serve  on  the  juries  by  which 
colored  men  were  tried.  Such  a  discrimination  is  at  variance 
with  the  principle  of  the  great  charter,  that  the  persons  by 
whom  the  accused  is  tried  shall  be  his  peers  or  equals.  The 
statute  under  which  the  jury  had  been  summoned  in  the  case 
on  hand  was,  therefore,  contrary  in  spirit  and  letter  to  the 
Fourteenth  Amendment,  and  the  appellant  was  entitled  to 
have  the  indictment  removed  to  a  court  where  the  prisoner 
could  have  a  lawful  jury. 

It  results  from  this  decision  that  while  no  one  is  entitled 
to  a  jury  of  his  own  race  or  color  he  may,  nevertheless,  re- 
quire that  the  State  shall  not  exclude  such  persons  from  the 
panel,  and  shall,  on  the  contrary,  give  all  men,  of  whatever 
descent  or  extraction,  an  equal  chance  of  taking  their  place 
in  the  jury-box,  and  consequently  of  having  a  tribunal  to 
which  they  can  appeal  with  confidence  when  their  own  rights 
are  involved.  If  the  local  law  falls  short  of  this  requirement, 
the  cause  may  be  transferred  to  the  federal  courts  as  a  means 
of  enforcing  the  right  which  the  Constitution  guarantees. 
Such  a  transfer  cannot  be  made,  under  the  existing  acts  of 
Congress,  simply  because  colored  men  were  not  impanelled, 
although  that  may  afford  ground  for  an  indictment,  under  the 
act  of  March  1,  1875,  against  the  officer  who  is  chargeable 
with  the  neglect.  The  Fourteenth  Amendment  undoubtedly 
applies  to  all  the  branches  of  the  State  government ;  and 
the  legislative,  executive,  and  judicial  departments  may  be 
equally  compelled  to  observe  the  restraints  which  it  imposes. 
But  section  641  of  the  Revised  Statutes  is  not  as  broad  as 
the  Amendment.  It  does  not  include  cases  where  the  rights 
of  a  citizen  are  violated  during  the  trial  by  judicial  action,  or 
by  a  partial  or  injurious  discrimination  in  the  sentence  ;  and 
the  remedy  must  then  be  sought,  not  in  the  removal  of  the 
cause,  but  in  an  appeal  to  the  higher  courts  of  the  State,  and 
ultimately  to  the  supreme  national  tribunal. 


REMOVAL   OF  INDICTMENTS. 


1161 


It  is  established  under  this  line  of  argument  that  if  negroes 
are  wrongfully  excluded  from  the  jury-box,  not  by  the  laws 
or  the  Constitution  of  the  State,  but  in  consequence  of  the 
partial  or  hostile  action  of  the  officers  whom  she  employs, 
the  proper  course  is  to  challenge  the  array,  or  move  to  quash 
the  panel  or  indictment ;  and  if  the  motion  be  refused,  a  writ 
of  error  will  lie  to  the  Supreme  Court  of  the  United  States. 
Such  was  the  judgment  of  that  tribunal  when  the  question 
arose  in  Neal  v.  Delaware.^  Two  negroes  were  convicted  in 
Delaware  for  the  crime  of  rape  by  a  jury  composed  exclu- 
sively of  white  men,  and  summoned,  according  to  an  affidavit 
filed  by  the  prisoners,  with  the  intention  of  excluding  colored 
persons,  contrary  to  the  laws  of  the  State ;  and  as  the  State 
court  overruled  the  objection  and  went  on  to  trial,  the  sen- 
tence was  reversed  and  the  cause  remanded.  Waite,  Ch.-J., 
and  Field,  J.,  dissented  on  the  ground  that  the  exclusion 
complained  of  was  not  shown  to  be  on  account  of  the  race  or 
color.  It  might  well  be,  as  the  Supreme  Court  of  Delaware 
had  declared  in  giving  judgment,  that  owing  to  the  condition 
of  serfage  from  which  the  colored  race  had  recently  emerged, 
no  colored  man  in  the  county  possessed  the  intelligence  and 
knowledge  requisite  for  the  responsible  duty  of  a  juror.  The 
laws  of  Delaware  imposed  no  disqualification  because  of  race, 
but  they  made  it  incumbent  on  the  sheriff  to  select  sober  and 
judicious  men  ;  and  until  evidence  was  adduced  to  the  con- 
trary, it  must  be  presumed  that  his  duty  was  fulfilled. 

Where  an  indictment  for  a  breach  of  the  peace  of  a  State 
involves  a  right  conferred  b}^  a  law  or  treaty  of  the  United 
States,  not  only  ma}^  the  cause  be  removed,  but  a  habeas 
corpus  may  issue  to  take  the  accused  out  of  the  hands  of  the 
local  authorities,  and  bring  him  before  the  Circuit  Court, 
which  may  remand  him,  set  him  at  large,  or  hand  him  over 
to  any  tribunal  having  cognizance  of  such  offences.^  In  Wil- 
denhus'  Case  the  court  held  that  such  a  writ  might  be  issued 
by  the  Circuit  Court  for  the  District  of  New  Jersey,  in  order 
to  ascertain  whether  a  seaman  who  was  confined  in  the  jail 
of  Hudson  County  in  that  State  to  answer  for  a  homicide 

1  103  U.  S.  370.     See  ante,  p.  538. 

2  Wildenhus'  Case,  120  U.  S.  1;  Ex  parte  Royall,  117  Id.  241,  252. 


1162  HABEAS   CORPUS  FROM   THE  SUPREME 

committed  on  board  the  Belgian  steamer  "  Woodland,"  while 
lying  at  the  dock  in  Jersey  City,  should  be  delivered  to  the 
Belgian  consul,  under  a  treaty  between  the  United  States 
and  Belgium,  providing  that  the  consuls  and  consular  agents 
of  either  nation  should  have  exclusive  charge  of  the  internal 
order  of  the  merchant- vessels  of  their  nation,  and  that  the 
local  authorities  shall  not  interfere,  except  when  the  disorder 
that  has  arisen  is  of  such  a  nature  as  to  disturb  tranquillity 
and  public  order  on  shore  or  in  the  port.  But  it  was  at 
the  same  time  decided  that  the  treaty  did  not  cover  grave 
offences  which,  though  committed  on  board  a  vessel,  dis- 
turbed the  peace  of  the  community ;  and  that  the  accused 
had  justly  been  remanded  to  the  jail  from  whence  he  came. 

A  person  who  is  committed  or  imprisoned  under  a  decree 
or  sentence  of  a  federal  tribunal  which  exceeds  its  jurisdic- 
tion, or  is  not  an  authority  for  his  detention,  may  be  dis- 
charged by  the  Supreme  Court  of  the  United  States  on  a 
writ  of  habeas  corpus?-  A  conviction  for  an  infamous  crime 
on  an  information  filed  by  the  Attorney-General  of  the  United 
States,  or  a  district-attorney,  without  a  presentment  by  the 
grand-jury,  is  contrary  to  the  Fifth  Amendment,  and  comes 
within  this  principle.  But  a  judgment  founded  on  an  erro- 
neous exercise  of  jurisdiction  will  stand  until  reversed,  and 
can  be  corrected  only  by  a  writ  of  error.^ 

"  The  Supreme  Court  has  no  general  authority  to  review 
on  error  or  appeal  the  judgments  of  the  Circuit  Courts  of  the 
United  States  in  cases  within  their  criminal  jurisdiction  ;  .  .  . 
but  it  is  equally  well  settled  that  when  a  prisoner  is  held 
under  the  sentence  of  any  court  of  the  United  States,  in  re- 
gard to  a  matter  wholly  beyond  the  jurisdiction  of  that  court, 
it  is  not  only  within  the  authority  of  the  Supreme  Court,  but 
it  is  their  duty,  to  inquire  into  the  cause  of  the  commitment, 
and  discharge  the  person  thus  illegally  confined."  ^     On  the 

1  Ex  parte  Lange,  18  Wallace,  163,  166;  Ex  parte  Wilson,  114  U.  S. 
417;  In  re  Sawyer,  124  Id.  200. 

8  Ex  parte  Watkins,  3  Peters,  193,  202;  Ex  parte  Yarbrough,  110 
U.  S.  651;  Ex  parte  Bigelow,  113  Id.  328;  Ex  parte  Harding,  120  Id.  783. 
See  Spies  v.  Illinois,  123  Id.  131. 

8  Ex  parte  Kearney,  7  Wheaton,  38;  Ex  parte  Parks,  3  U.  S.  18;  Ex 
parte  Yarbrough,  110  Id.  651,  653. 


TO  A  CIRCUIT  COURT.  1163 

other  hand,  if  the  offence  is  within  the  jurisdiction  of  the 
Circuit  Court,  it  must  determine  the  sufficiency  of  the  in- 
dictment :  and  as  a  writ  of  error  cannot  be  taken  to  the 
Supreme  Court  of  the  United  States,  the  judgment  will  be 
final  and  conclusive.  But  this  remark  does  not  apply  when 
the  law  creating  the  offence  is  unconstitutional ;  and  as  the 
proceeding  is  baseless,  relief  may  be  obtained  on  a  habeas 
corpus} 

The  State  courts  cannot  ordinarily  enforce  the  penal  laws 
of  tlie  federal  government,  nor  the  federal  courts  the  penal 
laws  of  a  State ;  but  either  government  may  prescribe  a 
penalty  for  the  breach  of  a  law  made  by  the  other,  which 
concerns  itself  and  falls  within  the  scope  of  its  powers ;  and 
the  law  so  adopted  will  then  become  its  own,  and  may  be 
administered  by  its  tribunals.^  In  Houston  v.  Moore  the 
plaintiff  in  error  had  been  convicted  and  sentenced  under 
a  law  of  the  State  of  Pennsylvania,  which,  after  declar- 
ing that  any  officer,  non-commissioned  officer,  or  private  of 
militia,  neglecting  or  refusing  to  serve  when  called  into 
actual  service  in  pursuance  of  any  order  or  requisition  of  the 
President  of  the  United  States,  should  be  liable  to  the  pen- 
alties defined  in  the  act  of  Congress  passed  Feb.  25,  1795, 
went  on  to  provide  that  the  offender  might  be  tried  and  sen- 
tenced to  undergo  the  aforesaid  penalties  by  a  court-martial 
assembled  under  the  laws  of  the  State.  The  sentence  was 
affirmed  by  the  highest  State  tribunal,  and  a  writ  of  error 
taken  from  their  judgment  to  the  Supreme  Court  of  the 
United  States.  It  was  urged  in  the  course  of  the  argument 
that  there  could  not  be  two  distinct  tribunals  sitting  for  the 
trial  of  the  same  crime.  Otherwise  the  offender  might  for  one 
fault  be  punished  twice,  or  what  was  equally  anomalous,  sen- 
tenced in  one  court  and  acquitted  in  the  other.  As  soon  as 
the  militia  were  called  to  the  field  the  United  States  took 
jurisdiction ;  and  as  the  end  in  view  was  one  peculiarly  re- 

1  Ex  parte  Yarbrough,  110  U.  S.  651,  653. 

2  Houston  V.  Moore,  5  Wheaton,  49 ;  Ex  parte  Siebold,  100  U,  S.  371 ; 
JS^jjarfe  Yarbrough,  110  Id.  469. 

VOL.  II.  — 33 


1164  EITHER  GOVERNMENT  IVIAY  ADOPT 

quiring  discipline  and  method,  their  authority  must  be  ex- 
clusive. This  reasoning  convinced  Mr.  Justice  Story,  who 
delivered  a  dissenting  opinion.  But  the  majority  of  the 
court  held  that,  although  a  State  could  not  legislatively  vary 
or  add  to  the  penalty  prescribed  by  Congress,  they  might, 
notwithstanding,  vest  a  concurrent  jurisdiction  in  their  tribu- 
nals to  inflict  the  punishment  which  Congress  had  devised. 
If  the  State  courts  could  not  ordinarily  take  cognizance  of 
acts  punishable  under  the  laws  of  Congress,  it  was  because 
those  laws  gave  the  circuit  courts  exclusive  jurisdiction  of 
all  crimes  and  offences  cognizable  under  the  authority  of  the 
United  States,  except  where  the  laws  of  the  United  States 
should  otherwise  provide  ;  which  accounted  for  the  proviso 
in  the  act  of  Feb.  24,  1867,  ch.  75,  concerning  the  forgery  of 
the  notes  of  the  Bank  of  the  United  States,  that  nothing 
which  it  contained  should  be  construed  to  deprive  the  courts 
of  the  individual  States  of  jurisdiction  under  their  laws  of 
offences  made  punishable  by  that  act.  Military  offences  were 
not  included  in  the  act  of  Congress  conferring  jurisdiction  on 
the  circuit  courts;  and  although  the  militia  laws  provided 
that  disobedience  to  the  President's  call  should  be  cognizable 
by  a  court-martial  convened  under  the  authority  of  the  United 
States,  the  jurisdiction  so  conferred  was  not  declared  to  be 
exclusive.  The  national  and  State  courts-martial  might, 
therefore,  well  exercise  the  concurrent  jurisdiction  which  was 
authorized  by  the  laws  of  the  State  and  was  not  prohibited 
by  the  laws  of  the  United  States.  Congress  could  not  confer 
jurisdiction  on  a  State  tribunal,  but  when  jurisdiction  existed 
it  might  well  be  exercised  for  the  purpose  of  enforcing  an 
act  of  Congress. 

In  this  instance  Pennsylvania  adopted  and  enforced  an  act 
of  Congress  ;  and  it  has  been  decided  on  like  grounds  that  Con- 
gress may  render  it  a  penal  offence  against  the  United  States 
for  any  officer  of  election,  at  an  election  held  for  a  repre- 
sentative in  Congress,  to  neglect  to  perform,  or  to  violate 
any  duty  in  regard  to  such  election,  whether  required  by 
a  law  of  the  State  or  of  the  United  States,  or  knowingly  to 
do  any  act  unauthorized  by  any  such  law,  with  intent  to 


A  LAW   MADE  BY  THE  OTHER.  1165 

affect  such  election,  or  to  make  a  fraudulent  certificate  of 
the  result.^ 

1  Ex  parte  Siebold,  100  U.  S.  371.  See  Ex  parte  Yarbrough,  110  Id. 
465.     See  ante^  p.  527. 

"  The  objection  that  the  laws  and  regulationfi,  the  violation  of  which 
is  made  punishable  by  the  acts  of  Congress,  are  State  laws,  and  have  not 
been  adopted  by  Congress,  is  no  sufficient  answer  to  the  power  of  Con- 
gress to  impose  punishment.  It  is  true  that  Congress  has  not  deemed  it 
necessary  to  interfere  with  the  duties  of  the  ordinary  officers  of  election, 
but  has  been  content  to  leave  them  as  prescribed  by  State  laws.  It  has 
only  created  additional  sanctions  for  their  performance,  and  provided 
means  of  supervision  in  order  more  effectually  to  secure  such  perform- 
ance. The  imposition  of  punishment  implies  a  prohibition  of  the  act 
punished.  The  State  laws  which  Congress  sees  no  occasion  to  alter,  but 
which  it  allows  to  stand,  are  in  effect  adopted  by  Congress.  It  simply 
demands  their  fulfilment.  Content  to  leave  the  laws  as  they  are,  it  is 
not  content  with  the  means  provided  for  their  enforcement.  It  provides 
additional  means  for  that  purpose,  and  we  think  it  is  entirely  within  its 
constitutional  power  to  do  so.  It  is  simply  the  exercise  of  the  power  to 
make  additional  regulations. 

"  Another  objection  made  is  that  if  Congress  can  impose  penalties  for 
violation  of  State  laws,  the  officer  will  be  made  liable  to  double  punish- 
ment for  delinquency,  —  at  the  suit  of  the  State  and  at  the  suit  of  the 
United  States.  But  the  answer  to  this  is  that  each  government  punishes 
for  violation  of  duty  to  itself  only.  When  a  person  owes  a  duty  to  two 
sovereigns,  he  is  amenable  to  both  for  its  performance,  and  either  may 
call  him  to  account.  Whether  punishment  inflicted  by  one  can  be 
pleaded  in  bar  to  a  charge  by  the  other  for  the  same  identical  act,  need 
not  now  be  decided,  although  considerable  discussion  bearing  upon  the 
subject  has  taken  place  in  this  court  tending  to  the  conclusion  that  such 
a  plea  cannot  be  sustained.  In  reference  to  a  conviction  under  a  State 
law  for  passing  counterfeit  coin,  which  was  sought  to  be  reversed  on  the 
ground  that  Congress  had  jurisdiction  over  that  subject,  and  might  inflict 
punishment  for  the  same  offence,  Mr.  Justice  Daniel,  speaking  for  the 
court,  said :  '  It  is  almost  certain  that,  in  the  benignant  spirit  in  which 
the  institutions  both  of  the  State  and  federal  systems  are  administered, 
an  offender  who  should  have  suffered  the  penalties  denounced  by  the  one 
would  not  be  subjected  a  second  time  to  punishment  by  the  other  for  acts 
essentially  the  same,  unless,  indeed,  this  might  occur  in  instances  of 
peculiar  enormity,  or  where  the  public  safety  demanded  extraordinary 
rigor.  But  were  a  contrary  course  of  policy  or  action  either  probable  or 
usual,  this  would  by  no  means  justify  the  conclusion  that  offences  falling 
within  the  competency  of  different  authorities  to  restrain  or  punish  them 
would  not  properly  be  subjected  to  the  consequences  which  these  author- 


1166  CRIMINAL  JURISDICTION. 

ities  might  ordain  and  affix  to  their  perpetration '  (Fox  v.  The  State  of 
Ohio,  5  Howard,  410).  The  same  judge,  delivering  the  opinion  of  the 
court  m  the  case  of  United  States  v.  Marigold,  9  Howard,  569,  where  a 
conviction  was  had  under  an  act  of  Congress  for  bringing  counterfeit  coin 
into  the  country,  said,  in  reference  to  Fox's  Case:  *  With  the  view  of 
avoiding  conflict  between  the  State  and  federal  jurisdictions,  this  court, 
in  the  case  of  Fox  v.  State  of  Ohio,  have  taken  care  to  point  out  that  the 
same  act  might,  as  to  its  character  and  tendencies  and  the  consequences 
it  involved,  constitute  an  offence  against  both  the  State  and  federal  gov- 
ernments, and  might  draw  to  its  commission  the  penalties  denounced  by 
either  as  appropriate  to  its  character  in  reference  to  each.  We  hold  this 
distinction  sound;'  and  the  conviction  was  sustained.  The  subject  came 
up  again  for  discussion  in  the  case  of  Moore  v.  State  of  Illinois,  14  Id.  13, 
in  which  the  plaintiff  in  error  had  been  convicted  under  a  State  law  for 
harboring  and  secreting  a  negro  slave,  which  was  contended  to  be  prop- 
erly an  offence  against  the  United  States  under  the  fugitive  slave  law  of 
1793,  and  not  an  offence  against  the  State.  The  objection  of  double 
punishment  was  again  raised.  Mr.  Justice  Grier,  for  the  court,  said: 
'  Every  citizen  of  the  United  States  is  also  a  citizen  of  a  State  or  Terri- 
tory. He  may  be  said  to  owe  allegiance  to  two  sovereigns,  and  may  be 
liable  to  punishment  for  an  infraction  of  the  laws  of  either.  The  same 
act  may  be  an  offence  or  transgression  of  the  laws  of  both.* 

"  Substantially  the  same  views  are  expressed  in  United  States  v.  Craik- 
shank  (92  U.  S.  542),  referring  to  these  cases.  A  variety  of  instances 
may  be  readily  suggested  in  which  it  would  be  necessary  or  proper  to 
apply  it.  Suppose,  for  example,  a  State  judge  having  power  under  the 
naturalization  laws  to  admit  aliens  to  citizenship  should  utter  false  cer- 
tificates of  naturalization,  can  it  be  doubted  that  he  could  be  indicted 
under  the  act  of  Congress  providing  penalties  for  that  offence,  even 
though  he  might  also,  under  the  State  laws,  be  indictable  for  forgery,  as 
well  as  liable  to  impeachment?"    Ex  parte  Siebold,  100  U.  S.  371. 


LECTURE  LIV. 

Distribution  of  Jurisdiction  among  the  Federal  Courts.  —  The  Original 
Jurisdiction  of  the  Supreme  Court  is  confined  to  Cases  affecting  Am- 
bassadors, other  Public  Ministers,  and  Consuls,  and  those  in  which  a 
State  will  be  a  Party,  —  The  grant  of  Original  Jurisdiction  in  such 
Cases  does  not  preclude  the  Exercise  of  Appellate  Jurisdiction  in  the 
same  Cases.  —  It  is  not  Exclusive  of  the  Inferior  Courts.  —  The  Federal 
Laws  may  be  administered  by  the  State  Courts,  and  the  State  Laws 
by  the  Federal  Courts.  —  Demands  arising  in  one  Sovereignty  may 
be  Enforced  by  the  Tribunals  of  another,  and  an  Assignee  in  Bank- 
ruptcy may  proceed  in  a  State  Court.  —  Aliens  may  be  Naturalized 
by  the  State  Courts,  which  may  also,  if  Congress  so  provide,  deter- 
mine the  Compensation  due  for  the  Exercise  of  Eminent  Domain  by 
Congress. 

An  inquiry  as  to  the  nature  and  extent  of  the  grant  of 
judicial  power  may  appropriately  be  followed  by  the  ques- 
tion how  is  it  apportioned  among  the  courts  of  the  United 
States,  and  when  is  their  jurisdiction  exclusive  of  the  State 
tribunals  ?  Article  III.,  section  1  of  the  Constitution,  pro- 
vides that  "  the  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court  and  in  such  inferior  courts  as 
Congress  may  from  time  to  time  ordain  and  establish."  The 
subjects  on  which  the  power  is  to  be  exercised  are  enumerated 
in  the  second  section  of  the  same  article,  first  subdivision ; 
and  as  regards  those  subjects  the  first  section  is  broad  enough 
to  confer  jurisdiction  in  every  form.  Were  this  all,  original 
and  appellate  jurisdiction  might  have  been  distributed  among 
the  federal  courts  as  Congress  thought  proper,  except  that 
the  "Supreme"  court  could  not  well  have  been  denied  the 


1168  DISTRIBUTION  OP  JURISDICTION 

appellate  power  which  its  title  implies.  The  second  sub- 
division of  the  second  section,  however,  provides  that  "  in 
all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all  the 
other  cases  before-mentioned  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  ex- 
ceptions and  under  such  regulations  as  the  Congress  shall 
make,"  —  the  cases  before-mentioned  being  the  cases  enume- 
rated in  the  general  grant  of  judicial  power,  which,  as  we 
have  seen,  includes  not  only  cases  where  the  character  of 
the  parties  gives  jurisdiction,  but  "  all  cases  arising  in  law 
or  equity  under  this  Constitution,  the  laws  of  the  United 
States,  and  the  treaties  made  or  to  be  made  under  their 
authority." 

A  question  here  naturally  arises,  Is  this  distribution  exclu- 
sive, or  may  the  Supreme  Court  take  appellate  jurisdiction  in 
cases  where,  from  the  character  of  the  parties,  it  might  exer- 
cise original  jurisdiction  ?  Prima  facie  the  word  "  shall  "  is 
imperative,  but  not  exclusive.  It  commands,  but  is  not 
necessarily  prohibitory.  If,  indeed,  a  particular  method  is 
enjoined,  every  other  of  a  different  or  inconsistent  character 
will  be  forbidden  relatively  to  the  purpose  in  view  and  the 
agent  to  whom  the  order  is  addressed  ;  but  an  injunction  to 
use  a  means  for  a  specific  purpose  will  not  preclude  the  use  of 
the  same  means  for  other  purposes,  nor  prevent  third  persons 
from  using  different  means  to  effect  the  same  purpose.  This 
argument  might  be  conclusive  were  it  not  that  since  jurisdic- 
tion is  conferred  in  the  most  general  terms  by  the  first  section, 
a  declaration  that  the  Supreme  Court  shall  have  original  juris- 
diction in  certain  instances  would  have  been  a  useless  reiter- 
ation had  not  the  framers  of  the  Constitution  intended  to 
limit  or  preclude,  and  not  to  enable.  So  the  provision,  '*  in 
all  the  other  cases  before-mentioned  the  Supreme  Court  shall 
have  appellate  jurisdiction  both  as  to  law  and  fact "  should, 
to  render  the  article  consistent  as  a  whole,  be  read  as  mean- 
ing that  its  jurisdiction  in  such  cases  shall  be  only  appellate, 

1  109  U.  S.  121. 


AMONG  THE  FEDERAL  COURTS. 


1169 


and  not  as  precluding  the  exercise  of  appellate  jurisdiction 
in  cases  where  original  jurisdiction  is  conferred.  Thus  in- 
terpreted the  article  appears  in  its  true  light,  as  designed  to 
give  the  Supreme  Court  an  original  jurisdiction,  which,  if 
Congress  thought  fit,  might  be  rendered  exclusive  in  cases 
concerning  the  States,  or  the  representatives  of  foreign  pow- 
ers, and  to  prevent  Congress  from  burdening  it  with  original 
jurisdiction  in  other  cases.^  For  like  reasons  the  grant  of 
original  jurisdiction  to  the  Supreme  Court  in  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls,  does  not 
preclude  the  circuit  courts  from  taking  cognizance  of  such 
cases  originally,  or  by  removal  from  the  State  tribunals.^ 
Hence  a  suit  brought  by  a  State  against  a  citizen  may  be 
transferred  to  a  circuit  court  of  the  United  States,  or  brought 
on  an  appeal  or  a  writ  of  error  before  the  national  court  of 
last  resort.^ 

These  questions  were  considered  in  Marbury  v.  Madison,* 
which  is  noteworthy  not  only  for  the  point  directly  involved, 
but  as  having  authoritatively  established  that  the  judicial 
brand)  of  the  United  States  is  paramount,  and  may  virtually 
annul  every  act  or  ordinance  of  the  States,  or  other  depart- 
ments of  the  government  which  is  not  political,^  by  de- 
claring it  invalid,  with  the  necessary  consequence  that  the 
persons  proceeding  under  it,  or  attempting  to  carry  it  into 
execution,  may  be  made  answerable  as  trespassers.^ 

The  circumstances  were  peculiar,  and  might  afford  ground 
for  hesitation.  Not  only  was  the  Constitutional  problem 
entirely  new,  but  there  was  reason  to  apprehend  that  if  the 
court  issued  the  writ  the  President  would  treat  the  question 


1  Cohen  v.  Virginia,  6  Wheaton,  274;  Ames  v.  Kansas,  111  U.  S.  449. 

2  United  States  v.  Ravara,  2  Dallas,  297;  Davis  v.  Packard,  7  Peters, 
276;  Graham  v.  Stucken,  4  Blatchford,  50;  Gittings  v.  Crawford,  Taney's 
Decisions,  1;  Bors  v.  Preston,  111  U.  S.  252. 

8  Cohen  v.  Virginia,  6  Wheaton,  274;  Ames  v.  Kansas,  111  U.  S. 
449,  469. 

4  1  Cranch,  137. 

fi  See  Marbury  v.  Madison,  1  Cranch,  137,  177. 

•  See  ante,  p.  123. 


1170  ORIGINAL  JURISDICTION  OF 

as  political,  and  direct  the  Secretary  to  disobey.  Certain 
commissions,  which  had  been  signed  by  John  Adams  during 
the  last  night  of  his  term  of  office,  remained  undelivered  in 
the  department,  and  were  withheld  by  his  successor,  Thomas 
Jefferson.^  An  application  was  then  made  to  the  Supreme 
Court  to  compel  the  delivery  of  the  commissions  by  a  man- 
damuB  addressed  to  the  Secretary  of  State,  but  refused  on 
the  ground  that  so  much  of  the  Judiciary  Act  as  authorized 
that  tribunal  to  issue  such  writs  "  in  cases  warranted  by  the 
principles  and  usages  of  law  to  courts  appointed,  or  persons 
holding  office  under  the  authority  of  the  United  States " 
carried  the  jurisdiction  of  the  Supreme  Court  beyond  the 
limits  set  by  the  grant  of  judicial  power.  The  Chief-Justice 
said,  in  delivering  judgment :  — 

"  It  is  contended  that,  as  the  whole  judicial  power  of  the  United 
States  is  vested  in  one  Supreme  Court,  and  such  inferior  courts  as 
Congress  may  from  time  to  time  establish,  and  the  clause  assigning 
original  jurisdiction  to  the  Supreme  Court  contains  no  negative 
or  restrictive  words,  Congress  may  confer  original  jurisdiction  on 
that  court  in  an}'  case  arising  out  of  the  judicial  power  of  the 
United  States.  Had  the  framers  of  the  Constitution  designed  to 
leave  it  in  the  discretion  of  the  legislature  to  apportion  the  judicial 
power  of  the  court  as  they  thought  fit,  they  would  simpl}'  haA^e 
defined  the  judicial  power  and  the  tribunals  in  which  it  was  to  be 
vested.  The  subsequent  part  of  the  section  was  mere  surplusage 
if  such  was  the  construction.  If  Congress  were  at  liberty  to  give 
the  court  appellate  jurisdiction  where  the  Constitution  declares  that 
their  jurisdiction  shall  be  original,  and  original  where  the  Consti- 
tution declares  that  it  shall  be  appellate,  the  distribution  of  juris- 
diction made  in  the  Constitution  was  form  without  substance. 
When  an  instrument  organizing  a  judicial  system  divides  it  into 
one  supreme  and  as  many  inferior  courts  as  the  legislature  shall 
establish,  and  then,  after  enumerating  their  powers,  proceeds  so  far 
in  distributing  them  as  to  define  the  jurisdiction  of  the  Supreme 
Court  by  declaring  the  cases  in  which  it  shall  take  original  jurisdic- 

1  See  and  compare  McMaster's  History  of  the  People  of  the  United 
States;  Parsons's  Life  of  Jefferson,  585;  Randolph's  Domestic  Life  of 
Jefferson,  307;  and  Adams's  Administration,  Philadelphia,  1846. 


THE  SUPREME   COURT. 


1171 


tion,  and  that  in  all  others  jurisdiction  shall  be  appellate,  the  plain 
import  of  the  words  is  that  in  one  class  of  cases  the  jurisdiction  is 
original,  not  appellate  ;  in  the  other,  appellate,  not  original.  The 
court,  therefore,  could  not  issue  a  mandamus^  unless  in  the  exer- 
cise of  an  appellate  jurisdiction,  or  as  a  means  of  enabling  them  to 
exercise  such  jurisdiction." 

The  generality  of  this  language  led  to  an  argument  tend- 
ing, singularly,  to  lessen  the  dignity  and  usefulness  of  the 
Supreme  Court.  If  the  grant  of  judicial  power  in  the  Con- 
stitution was,  as  the  Chief-Justice  had  intimated,  distribu- 
tive, dividing  the  sum  of  jurisdiction  into  two  unequal 
portions,  whatever  was  given  in  one  branch  of  the  clause 
was  necessarily  withdrawn  from  the  operation  of  the  other. 
The  court  had  original  jurisdiction  in  every  case  where  a 
public  minister,  a  consul,  or  a  State  was  a  party.  It  could 
not,  therefore,  exercise  appellate  jurisdiction  in  any  such 
case.  This  would  be  true  even  if  the  case  arose  under  the 
Constitution,  the  laws,  or  the  treaties  of  the  United  States. 
For  although  the  character  of  the  cause  might  under  these 
circumstances  be  within  the  appellate  jurisdiction  of  the 
court,  it  would,  from  the  character  of  the  parties,  fall  within 
the  grant  of  original  jurisdiction  ;  and,  as  this  had  been 
shown  to  be  exclusive,  it  would  preclude  the  court  from 
exercising  appellate  jurisdiction.  This  reasoning  would  have 
more  weight  had  the  object  of  the  framers  of  the  Constitu- 
tion been  the  distribution  of  a  single  power.  When  original 
jurisdiction  is  conferred  upon  one  court  for  certain  purposes, 
and  upon  another  for  certain  other  purposes,  each  may  be 
confined  to  the  jurisdiction  expressly  given.  But  an  appel- 
late differs  so  essentially  from  an  original  jurisdiction  that  a 
declaration  that  a  court  shall  have  the  one  in  certain  in- 
stances cannot  be  construed  as  prohibiting  the  exercise  of 
the  other  in  the  same  instances.  An  appellate  jurisdiction 
is  by  the  terms  of  the  Constitution  conferred  in  all  the  other 
cases  above  mentioned  ;  that  is  to  say,  in  every  case  where 
jurisdiction  arises  from  the  character  of  the  cause,  or  from 
the  character  of  the  parties,  and  which  is  not  embraced  in 
the  grant  of  original  jurisdiction.     And  as  this  is  confined 


1172  APPELLATE  JURISDICTION  OP 

to  cases  affecting  ambassadors,  and  other  public  ministers, 
and  consuls,  and  those  in  which  a  State  shall  be  a  party,  it 
cannot  operate  to  exclude  cases  where  jurisdiction  is  con- 
ferred by  the  character  of  the  cause. 

The  question  arose  in  Cohen  v.  Virginia,^  where  the  Chief- 
Justice  took  occasion  to  review  and  explain  the  judgment 
which  had  been  pronounced  in  Marbury  v.  Madison :  — 

"  The  Constitution  gave  the  Supreme  Court  original  jurisdiction  in 
certain  enumerated  cases,  and  ^n  appellate  jurisdiction  in  all  others. 
Among  those  in  which  jurisdiction  was  to  be  exercised  in  the  appel- 
late form  were  cases  arising  under  the  Constitution  and  laws  of  the 
United  States.  These  provisions  of  the  Constitution  were  equally 
obligatory,  and  should  equally  be  observed.  Where  a  State  is  a 
party,  the  jurisdiction  of  the  court  is  original.  But  a  case  to  which 
a  State  is  a  party  may  arise  under  the  Constitution  and  laws  of  the 
United  States.  Under  these  circumstances  the  case  will,  relatively 
to  the  character  of  the  party,  be  within  the  original  jurisdiction, 
and  relatively  to  the  character  of  the  cause,  within  the  appellate 
jurisdiction  of  the  court.  What  then  would  be  the  dut}'  of  the 
court?  Certainly  to  put  such  an  interpretation  on  the  Constitution 
as  would  give  effect  to  both  provisions.  When  a  question  involv- 
ing the  Constitution  or  a  law  of  the  United  States  arose  in  the 
progress  of  a  cause,  the  jurisdiction  of  the  court  could  be  exer- 
cised only  in  its  appellate  form.  To  deny  the  right  to  exercise  it 
in  this  form  was  to  deny  the  right  to  exercise  it  at  all,  —  to  con- 
strue a  clause  distributing  the  power  of  the  Supreme  Court  in  such 
a  manner  as  to  impair  the  power  itself.  Such  a  construction  could 
only  be  justified  on  the  ground  of  necessity,  and  no  such  necessitj' 
existed  under  the  article  in  question.  Affirmative  words  should 
not  receive  a  negative  interpretation,  unless  the  case  was  one  where 
such  an  interpretation  was  essential  to  their  full  or  effective  opera- 
tion. The  affirmative  words  by  which  original  jurisdiction  was 
conferred  on  the  Supreme  Court  in  certain  instances  might  be  in- 
terpreted as  negativing  the  right  to  exercise  original  jurisdiction  in 
any  other  instances,  because  they  would  otherwise  be  unmeaning 
surplusage ;  but  the}"  might  have  full  effect  without  excluding  the 
right  to  exercise  an  appellate  jurisdiction.  The  Constitution  de- 
clares that  where  a  State  is  a  party  the  Supreme  Court  shall  have 

1  6  Wheaton,  264,  392. 


THE  SUPEEME  COURT. 


1173 


original  jurisdiction ;  but  it  does  not  sa}^  that  the  appellate  juris- 
diction given  in  cases  arising  under  the  Constitution  and  laws  of 
the  United  States  shall  not  be  exercised  where  a  State  is  a  party. 
The  powers  of  the  Supreme  Court  were  defined,  but  there  was  no 
definition  of  the  powers  of  the  inferior  courts.  They  might,  conse- 
quently, exercise  original  jurisdiction  concurrently  with  the  Supreme 
Court.  If  a  State  were  to  sue  a  citizen  of  another  State  in  a  cir- 
cuit court,  the  Supreme  Court  could  not,  if  the  argument  for  the 
defendant  in  error  was  sound,  exercise  appellate  jurisdiction ;  and 
the  strange  result  would  follow  of  a  superior  court  unable  to  revise 
the  judgment  of  an  inferior  court,  because  the  superior  court  had 
original  jurisdiction  of  the  cause  in  which  the  judgment  was  pro- 
nounced. In  like  manner  the  Supreme  Court  had  original  jurisdic- 
tion in  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls.  The  object  of  this  provision  was  to  place  the  representa- 
tives of  foreign  governments  under  the  protection  of  the  national 
judiciar}',  and  withdraw  them  from  the  power  of  the  States.  Yet 
if  the  construction  was  sound,  and  a  suit  were  brought  against  a 
foreign  minister  in  a  State  tribunal,  the  Supreme  Court  could  nei- 
ther revise  nor  overrule  the  judgment.  Such  an  interpretation 
would  defeat  the  obvious  intention  of  the  Constitution,  and  must 
therefore  be  laid  aside.  On  a  just  construction  of  that  instrument, 
the  original  jurisdiction  of  the  Supreme  Court  was  limited  to  cer- 
tain enumerated  instances.  In  every  other  instance  to  which  the 
judicial  power  of  the  United  States  extended,  their  jurisdiction  must 
be  exercised  in  the  appellate,  and  only  in  the  appellate  form.  And 
where  the  character  of  the  cause  was  such  as  to  confer  jurisdiction 
in  that  form,  the  right  to  exercise  it  would  not  fail  because  the 
case  was  within  the  grant  of  original  jurisdiction." 

These  cases  and  the  subsequent  course  of  decision  lead 
to  the  following  inferences :  The  courts  of  the  United 
States  are  tribunals  of  limited  jurisdiction,  deriving  their  au- 
thority solely  from  the  Constitution.  They  have  no  authority 
that  is  not  given  by  that  instrument,  and  cannot  go  in  any 
case  beyond  the  terms  of  the  grant.^  These  confer  jurisdic- 
tion in  two  classes  of  cases,  —  one  depending  on  the  character 
of  the  cause,  the  other  on  the  character  of  the  parties.     The 

1  Grace  v.  American  Ins.  Co,  109  U.  S.  278,  283 ;  Robertson  v.  Cease, 
97  Id.  646;  Bora  v.  Preston,  111  Id.  252,  255. 


1174  JURISDICTION  OF  THE 

Supreme  Court  has  original  jurisdiction  in  three  cases  be- 
longing to  the  latter  class,  —  where  a  State,  where  a  foreign 
minister,  or  where  a  consul  is  a  party.  They  have  appellate 
jurisdiction  in  every  case  within  the  general  grant  of  judicial 
power  in  the  Constitution,  whether  it  could  or  could  not 
come  under  their  original  jurisdiction.  The  affirmative  words 
by  which  original  jurisdiction  is  conferred  in  the  instances 
above-mentioned  exclude  the  right  to  take  such  jurisdiction 
in  any  other  instance  ;  but  they  do  not  operate  as  a  restric- 
tion on  the  grant  of  appellate  jurisdiction,  or  preclude  a 
concurrent  jurisdiction  in  the  inferior  courts  of  the  United 
States.  The  circuit  and  district  courts  may  accordingly 
take  cognizance,  concurrently  with  the  Supreme  Court,  of 
suits  brought  by  or  against  a  consul,  or  where  a  public  min- 
ister or  ambassador  appears  in  court  as  plaintiff;  and  every 
such  suit  may  be  removed  from  a  State  court  to  the  federal 
tribunals.^  If  suits  against  a  foreign  minister  must  be 
brought  in  the  Supreme  Court,  it  is  from  the  provisions  of 
the  Judiciary  Act,  and  not  from  the  Constitution. 

The  better  opinion  would  also  seem  to  be  that  Congress 
may,  if  they  think  fit,  confer  an  appellate  jurisdiction  on  an 
intermediate  tribunal,  and  require  all  causes  arising  on  a 
writ  of  error  to  be  brought  there  in  the  first  instance,  before 
going  to  the  Supreme  Court.  This  view  was  suggested  in 
"  The  Federalist,"  No.  82,  and  has  since  received  the  sanction 
of  Kent  and  Story  in  their  Commentaries  on  Constitutional 
Law.  It  results  from  the  words  of  the  Constitution,  which 
declare  that  the  judicial  power  of  the  United  States  shall  be 
vested  in  a  Supreme  Court  and  such  inferior  courts  as  Con- 
gress may  from  time  to  time  establish,  without  imposing  any 
restriction  on  the  jurisdiction  of  the  inferior  courts.^ 

The  rule  is  established  on  this  basis  by  the  case  of  Ames  v, 
Kansas.^  The  court  there  adopted  the  reasoning  of  Chief- 
Justice  Marshall  in  Cohen  v,  Virginia,  and  held  that  it  ap- 

1  Davis  V.  Packard,  7  Peters,  276;  Gittings  v.  Crawford,  1  Taney's 
Decisions,  1;  Ames  v.  Kansas,  111  U.  S.  449,  468. 

2  See  Cohen  v.  Virginia,  6  Wheaton,  396. 
8  111  U.  S.  449. 


INFERIOR   FEDERAL  COURTS.  1175 

plied  to  the  inferior  courts  of  the  United  States.  It  followed 
that  a  case  arising  under  the  Constitution  or  an  act  of  Con- 
gress might  be  brought  in  the  circuit  courts  originally,  by 
way  of  removal,  or,  as  we  may  infer,  on  appeal  or  writ  of 
error,  although  a  State  was  the  plaintiff,  and  the  case  fell 
within  the  grant  of  original  jurisdiction  to  the  Supreme  Court 
of  the  United  States.  Such  also  is  the  rule,  where  Congress 
do  not  otherwise  provide,  as  regards  suits  by  or  against  am- 
bassadors, public  ministers,  and  consuls.^ 

Another  question  of  equal  moment  remains  to  be  consid- 
ered. Is  the  judicial  power  of  the  United  States  exclusive, 
and  to  what  extent,  of  the  jurisdiction  of  the  State  tribunals? 
It  is  a  well-established  principle  that  the  grant  of  a  power  to 
Congress  will  not  preclude  the  exercise  of  a  similar  power  by 
the  States,  unless  the  power  is  one  which,  from  its  own  nature 
or  the  manner  in  which  it  is  exercised,  must  be  lodged  in  a 
single  hand.  This  is  peculiarly  true  of  the  judicial  power, 
which  may  well  be  concurrent  in  different  tribunals,  de- 
riving their  authority  from  the  same  or  from  a  different 
government.2  It  is  equally  clear  that  a  grant  to  the  United 
States  cannot  enlarge  the  powers  of  the  States,  or  confer  an 
authority  which  they  did  not  possess  antecedently  to  the 
grant. 

Reasoning  from  these  premises  we  may  infer,  first,  that  the 
State  courts  may  take  cognizance  of  causes  that  were  within 
their  jurisdiction  before  the  Constitution  was  adopted,  unless 
a  contrary  intent  appears  in  the  grant  of  judicial  power  to 
the  United  States,  or  the  laws  passed  to  carry  it  into  effect ; 
and  next,  that  they  cannot  exercise  any  part  of  the  jurisdic- 
tion conferred  on  the  General  Government  which  would  not 
fall  within  their  scope  independently  of  the  grant.^ 

In  applying  these  rules  it  is  necessary  to  remember  that 

1  Bors  V.  Preston,  111  U.  S.  252;  Ames  v.  Kansas,  Id.  449,  469;  Git- 
tings  V.  Crawford,  1  Taney's  Decisions,  1 ;  Graham  v.  Stucken,  4  Blateh.  50. 

2  Ward  V.  Jenkins,  10  Metcalf,  583;  Delafield  v.  Illinois,  2  Hill, 
N.  Y.  159;  Teal  v.  Felton,  1  Comstock,  537;  12  Howard,  204. 

«  Houston  V.  Moore,  5  Wheaton,  1, 25, "27;  The  United  States  v.  Jones, 
109  U.  S.  513,  519. 


1176  THE   STATE   COURTS   MAY  ADMINISTER 

a  court  deriving  its  authority  from  one  government  may 
give  redress  or  compensation  for  the  wrongful  detention  or 
violation  of  a  right  arising  under  a  law  or  grant  of  another 
government,  especially  where  both  are  cognate,  as  in  the  case 
of  the  United  States  and  the  several  States.^  The  State 
courts  may  accordingly  take  cognizance  of  any  cause  aris- 
ing within  the  general  limits  of  their  jurisdiction,  although 
founded  upon  a  statute  of  the  United  States,  unless  the  stat- 
ute is  so  worded  as  to  place  the  remedy  exclusively  in  the 
courts  of  the  Union.  A  bond  is  not  less  within  the  jurisdic- 
tion of  the  local  tribunals  because  it  was  executed  in  pur- 
suance of  an  act  of  Congress,  and  is  conditioned  for  the 
performance  of  a  duty  which  the  act  enjoins.^  In  like  man- 
ner, an  assignee  in  bankruptcy  may  sue  in  a  State  court, 
although  his  right  to  bring  the  action  is  based  exclusively  on 
a  statute  of  the  United  States,  and  he  would  have  no  stand- 
ing in  court  if  the  statute  were  repealed. ^ 

1  See  United  States  v.  Jones,  109  IT.  S.  513,  519;  Mostyn  v.  Fabrigas, 
Cowper,  161;  1  Smith's  Lead.  Cas.  (8th  Am.  ed.)  1027.    See  ante,  p.  140. 

2  United  States  v.  Dodge,  14  Johnson,  95. 

8  Ward  V.  Jenkins,  10  Metcalf,  583.  The  Court  cited  and  relied  on 
the  language  of  Chancellor  Kent,  1  Comm.  (3  ed.)  397,  that  the  State 
courts  may  in  the  exercise  of  their  ordinary  and  rightful  jurisdiction 
incidentally  take  cognizance  of  cases  arising  under  the  Constitution  and 
treaties  of  the  United  States.  The  jurisdiction  in  such  cases  rests,  not 
on  a  judicial  authority  conferred  as  such  by  a  law  of  Congress,  but  on 
the  ordinary  powers  of  the  State  courts,  acting  in  the  particular  case 
on  the  legal  right  which  had  been  created  by  the  legislation  of  Congress. 
It  is  the  duty  of  the  State  courts  to  give  force  and  effect  to  a  law  of 
Congress  as  the  supreme  law  of  the  land.  Such  a  statute  is  law  in 
Massachusetts,  as  much  so  as  a  statute  enacted  by  her  own  legisla- 
ture, —  deriving  its  vitality  from  another  source,  but  of  equal  or  para- 
mount authority.  The  case  was  not  analogous  to  that  of  an  assignee 
claiming  under  the  laws  of  another  State  or  a  foreign  government. 
There  the  assignee,  like  an  executor  or  administrator  appointed  by  a  for- 
eign jurisdiction,  derived  his  authority  from  a  source  which  had  no  force 
or  effect  where  he  sued;  but  an  assignee  in  bankruptcy  proceeded  under 
a  statute  which  was  binding  in  a  State  tribunal  as  a  law  of  the  State. 
Unless  therefore  the  jurisdiction  of  the  Circuit  Court  had  been  made  ex- 
clusive by  Congress,  the  assignee  might  maintain  the  suit.  And  as  such 
an  intention  was  not  explicitly  stated,  it  might  be  presumed  that  the 
jurisdiction  of  the  State  courts  remained  unimpaired. 


THE  LAWS  OF  THE  UNITED   STATES. 


1177 


It  has  never  been  doubted  that  a  title  arising  from  a  law 
or  grant  of  the  United  States  may  be  enforced  by  ejectment 
in  a  State  tribunal ;  and  while  suits  for  the  infringement  of 
a  patent  are  exclusively  within  the  jurisdiction  of  the  circuit 
courts  of  the  United  States,  a  contract  of  sale  or  license  is 
within  the  cognizance  of  the  State  courts,  although  the  sub- 
ject-matter is  an  invention  which  has  been  patented  by  the 
United  States,  and  the  construction  or  operation  of  the  pat- 
ent laws  may  be  incidentally  involved.^  Indeed,  so  inti- 
mately are  the  laws  of  the  United  States  and  of  the  several 
States  blended,  and  so  difficult  is  it,  in  many  cases,  to  distin- 
guish what  part  of  the  right  or  title  at  issue  is  derived  from 
the  one  and  what  from  the  other,  that  to  confine  the  remedy 
to  the  courts  of  the  United  States  whenever  a  grant  or  law 
of  Congress  is  in  question  would  seriously  impair  the  use- 
fulness of  the  State  tribunals,  if  it  did  not  end  in  their  entire 
suppression. 

It  is  nevertheless  a  general  and  well-settled  rule,  that 
where  a  right  is  created  by  statute,  and  a  remedy  given  to 
enforce  it,  the  presumption  is  that  the  remedy  was  meant  to 
be  exclusive.  It  has  accordingly  been  held  that  a  suit  for 
the  infringement  of  a  patent  will  not  lie  in  the  State  courts, 
and  can  be  brought  only  in  the  Circuit  Court  of  the  United 
States ;  but  this  depends  on  the  language  of  the  patent  acts, 
and  not  on  the  operation  of  the  Constitution  of  the  United 
States.2 

Three  questions  may  arise  under  the  foregoing  head  :  — 

1.  Can  a  State  court  enforce  the  rights  arising  under  the 
laws  of  the  United  States. 

2.  Have  the  State  courts  jurisdiction  of  an  alleged  or  prima 
facie  breach  of  the  local  law,  where  the  defence  or  justifica- 
tion depends  on  the  Constitution  or  a  law  of  the  United 
States  ? 

3.  Can  such  a  court  take  cognizance  of  an  offence  against 
the  United  States  ? 

The  first  question  should  obviously  receive  an  affirmative 

1  Hartell  v.  Tilghman,  99  U.  S.  547.     See  ante,  p.  1086. 

2  Dudley  v.  Mayhew,  3  Comstock,  9. 


1178         EIGHTS   ARISING  UNDER   ONE   SOVEREIGNTY 

reply.  It  is  a  general,  and,  where  land  is  not  concerned, 
universal  rule,  that  a  court  which  has  jurisdiction  over  the 
parties  may  give  effect  to  a  demand  which  either  of  them  has 
against  the  other,  although  arising  under  the  laws  of  a  for- 
eign country,  and  one  that  could  not  have  come  into  being 
under  the  lex  fori.  A  contract  made  and  to  be  performed  in 
Paris  or  Canton  may  be  a  ground  of  recovery  in  England  or 
the  United  States.  Damages  may  be  recovered  in  New  York 
for  an  injury  to  the  plaintiff's  goods  or  person,  although  both 
parties  were  at  the  time  in  France,  and  governed  by  the 
French  laws.^ 

In  deciding  a  controversy  arising  in  another  jurisdiction, 
the  court  will  have  regard  to  the  law  of  the  place  where  the 
contract  was  made,  or  the  wrong  committed,  and  may  give 
redress  for  the  violation  of  a  right,  or  the  non-fulfilment  of 
an  obligation,  which  the  lex  fori  does  not  recognize.  In 
Buron  v.  Denman,^  the  defendant  was  held  liable  in  England 
for  an  injury  inflicted  on  a  Portuguese  slave-dealer  in  Africa, 
by  burning  his  barracoons  and  liberating  his  slaves,  although 
a  recovery  could  not  have  been  had  under  English  law  had 
the  act  been  done  in  any  part  of  the  British  dominions.  The 
rule  applies  a  fortiori  where  the  obligation  is  founded  on  con- 
sent ;  and  an  agreement  for  the  sale  and  delivery  of  slaves  in 
a  foreign  country  may  be  enforced  in  a  country  where  slavery, 
and  any  traffic  in,  or  sale  or  barter  of,  slaves,  is  prohibited 
by  law.^  So  a  recovery  may  be  had  in  Vermont,  under 
the  statutes  of  New  York,  for  money  lost  at  play  in  the  lat- 
ter State,  although  no  such  right  exists  or  could  be  main- 
tained under  the  Vermont  law.^  The  court  said  that  actions 
for  the  recovery  of  penalties  were  local,  and  would  not  lie  in 
a  foreign  jurisdiction ;  but  that  an  obligation  to  refund  im- 

^  See  Mostyn  v.  Fabrigas,  Cowper,  161;  1  Smith's  Leading  Cases, 
(8  Am.  ed.);  Heuwood  v.  Cheeseman,  3  S.  &  R.  500;  Atkinson  v.  The 
Railroad  Co.  2  Vroom,  309;  Robinson  v.  Armstrong,  34  Maine,  145;  Hale 
V.  Lawrence,  1  Zabriskie,  714. 

2  2  Exchequer,  166. 

8  Santos  V.  Illidge,  8  C.  B.  (n.  s.)  866. 

*  Flanagan  v.  Packard,  41  Vt.  561. 


MAY  BE  ENFORCED  BY  ANOTHER.        1179 

posed  by  the  lex  loci  was  a  debt,  and  might  be  recovered  as 
such  in  any  tribunal  which  obtained  jurisdiction  over  the 
parties. 

These  decisions  show  that  a  right  arising  under,  or  con- 
ferred by,  the  laws  of  one  sovereignty  may  be  vindicated  by 
the  tribunals  of  another.  It  is  by  virtue  of  this  doctrine, 
and  because  the  acts  of  Congress  are  as  much  the  laws  of  the 
State  as  if  they  were  enacted  by  its  legislature,  that  the  State 
courts  enforce  the  Constitution  and  statutes  of  the  United 
States,  subject  to  the  controlling  power  of  Congress,  which 
may  at  any  time  vest  the  jurisdiction  of  such  questions 
exclusively  in  the  national  tribunals.  The  principle  was 
indicated  by  Hamilton  in  one  of  those  articles  in  "  The 
Federalist"  which  anticipated  the  working  of  the  nascent 
Constitution  with  a  sagacity  that  has  seldom  been  falsified 
by  the  event.  "  The  judiciary  power,"  said  he,  "  of  every 
government  looks  beyond  its  own  local  or  municipal  laws, 
and  in  civil  cases  lays  hold  of  all  subjects  of  litigation  be- 
tween parties  within  its  jurisdiction,  though  the  causes  of 
dispute  are  relative  to  the  laws  of  the  most  distant  part  of 
the  globe.  Those  of  Japan,  not  less  than  those  of  New  York, 
may  furnish  the  objects  of  legal  discussion  to  our  courts. 
When,  in  addition  to  this,  we  consider  the  State  governments 
and  the  national  governments  as  they  truly  are,  in  the  light 
of  kindred  systems  and  as  parts  of  one  whole,  the  inference 
seems  to  be  conclusive  that  the  State  courts  would  have  a 
concurrent  jurisdiction  in  all  cases  arising  under  the  laws  of 
the  Union  where  it  was   not  expressly  prohibited.^     They 

1  **  But  this  doctrine  of  concurrent  jurisdiction  is  clearly  applicable 
only  to  those  descriptions  of  causes  of  which  the  State  courts  have  pre- 
vious cognizance.  It  is  not  equally  evident  in  relation  to  cases  which 
may  grow  out  of,  and  be  peculiar  to,  the  constitution  to  be  established; 
for  not  to  allow  the  State  courts  a  right  of  jurisdiction  in  such  cases  can 
hardly  be  considered  as  the  abridgment  of  pre-existing  authority.  I  mean 
not  therefore  to  contend  that  the  United  States,  in  the  course  of  legisla- 
tion upon  the  objects  entrusted  to  their  direction,  may  not  commit  the 
decision  of  causes  arising  upon  a  particular  regulation  to  the  federal 
courts  solely,  if  such  a  measure  should  be  deemed  expedient ;  but  I  hold 
that  the  State  courts  will  be  divested  of  no  part  of  their  primitive  juris- 
voL.  II. —  34 


1180  THE  FEDERAL  LAWS   ARE  LAWS  IN 

would  be  the  natural  auxiliaries  of  the  federal  courts,  and 
an  appeal  would  as  naturally  lie  from  them  to  the  tribunal 

diction,  further  than  may  relate  to  an  appeal ;  and  I  am  even  of  opinion 
that  in  every  case  in  which  they  were  not  expressly  excluded  by  the  future 
acts  of  the  national  legislature,  they  will  of  course  take  cognizance  of 
the  causes  to  which  those  acts  may  give  birth.     This  I  infer  from  the 
nature  of  judiciary  power,  and  from  the  general  genius  of  the  system. 
The  judiciary  power  of  every  government  looks  beyond  its  own  local  or 
municipal  laws,  and  in  civil  cases  lays  hold  of  all  subjects  of  litigation 
between  parties  within  its  jurisdiction,  though  the  causes  of  dispute  are 
relative  to  the  laws  of  the  most  distant  part  of  the  globe.     Those  of 
Japan,  not  less  than  of  New  York,  may  furnish  the  objects  of  legal  dis- 
cussion to  our  courts.     When  in  addition  to  this  we  consider  the  State 
governments,  and  the  national  governments,  as  they  truly  are,  in  the  light 
of  kindred  systems,  and  as  parts  of  one  whole,  the  inference  seems  to  be 
conclusive,  and  the  State  courts  would  have  a  concurrent  jurisdiction  in 
all  cases  arising  under  the  laws  of  the  Union,  where  it  is  not  expressly 
prohibited.     Here  another  question  occurs:     What  relation  would  sub- 
sist between  the  national  and  State  courts  in  these  instances  of  concur- 
rent jurisdiction?     I  answer  that  an  appeal  would  certainly  lie  from  the 
latter  to  the  Supreme  Court  of  the  United  States.     The  Constitution  in 
direct  terms  gives  an  appellate  jurisdiction  to  the  Supreme  Court  in  all 
the  enumerated  cases  of  federal  cognizance  in  which  it  is  not  to  have  an 
original  one,  without  a  single  expression  to  confine  its  operation  to  the 
inferior  federal  courts.     The  objects  of    appeal,  not  the  tribunals  from 
which  it  is  to  be  made,  are  alone  contemplated.    From  this  circumstance, 
and  from  the  reason  of  the  thing,  it  ought  to  be  construed  to  extend  to 
the  State  tribunals.     Either  this  must  be  the  case  or  the  local  courts 
must  be  excluded  from  a  concurrent  jurisdiction  in  matters  of  national 
concern;  else  the  judiciary  authority  of  the  Union  may  be  eluded  at  the 
pleasure  of  every  plaintiff  or  prosecutor.     Neither  of  these  consequences 
ought,  without  evident  necessity,  to  be  involved;  the  latter  would  be 
entirely  inadmissible,  as  it  would  defeat  some  of  the  most  important  and 
avowed  purposes  of  the  proposed  government,  and  would  essentially  em- 
barrass its  measures.     Nor  do  I  perceive  any  foundation  for  such  a  sup- 
position.    Agreeably  to  the  remark  already  made,  the  national  and  State 
systems  are  to  be  regarded  as  one  wliole.     The  courts  of  the  latter  will  of 
course  be  natural  auxiliaries  to  the  execution  of  the  laws  of  the  Union, 
and  an  appeal  from  them  will  as  naturally  lie  to  that  tribunal  which  is 
destined  to  unite  and  assimilate  the  principles  of  national  justice  and  the 
rules  of  national  decision.     The  evident  aim  of  the  plan  of  the  conven- 
tion is  that  all  the  causes  of  the  specified  classes  shall,  for  weighty  public 
reasons,  receive  their  original  or  final  determination  in  the  courts  of  the 
Union.     To  confine,  therefore,  the  general  expressions  which  give  appel- 


THE   SEVERAL  STATES. 


1181 


which  was  destined  to  unite  and  assimilate  the  principles  of 
national  justice  and  the  rules  of  national  dominion."  This 
argument  was  cited  by  Mr.  Justice  Bradley,  in  Claflin  v. 
Houseman,^  as  "  conclusive  that  the  State  courts  have  a  con- 
current jurisdiction  in  all  cases  arising  under  the  laws  of  the 
Union  where  it  is  not  expressly  prohibited."  In  the  Northern 
Central  R.  R.  Co.  v.  Scholl,^  an  action  was  sustained  in  Mary- 
land against  the  defendants  below  for  the  negligence  of  their 
agents  in  selling  a  passenger-ticket  in  Pennsylvania  to  a  run- 
away slave,  by  which  means  he  was  enabled  to  escape  from 
his  master.  The  court  said  that  although  slavery  was  not 
recognized  by  the  laws  of  the  latter  State,  the  act  complained 
of  was  not  the  less  an  injury  to  the  plaintiff's  right  under  the 
Constitution  and  laws  of  the  United  States,  for  which  redress 
might  be  given  by  any  tribunal  competent  to  adjudge  such 
questions. 

It  is  established  in  accordance  with  this  principle  that  re- 
lief may  be  given  in  a  State  tribunal,  although  the  right 
under  which  the  plaintiff  claims,  or  the  defendant  justifies, 
depends  on  the  Constitution  or  laws  of  the  United  States. 
The  laws  of  the  Union  are,  by  the  express  words  of  the 
Constitution,  a  part  of  the  law  of  each  State,  and  as  binding 
upon  its  officers  and  people  as  its  own  constitution  and  laws, 
and  must  necessarily  be  considered  and  applied  by  the  State 
courts  in  giving  judgment.^  A  different  view  would  seriously 
embarrass,  if  it  did  not  preclude,  the  administration  of  jus- 
tice ;  because  both  systems  are  so  interwoven  that  a  cause  can 
seldom  be  brought  before  the  judiciary  of  either  government 
which  may  not  involve  questions  arising  under  the  legislation 


late  jurisdiction  to  the  Supreme  Court  to  appeals  from  the  subordinate 
federal  courts,  instead  of  allowing  their  extension  to  the  State  courts, 
would  be  to  abridge  the  latitude  of  the  terras,  in  subversion  of  the  intent, 
contrary  to  every  sound  rule  of  interpretation."     Federalist,  Article  82. 

1  93  U.  S.  1.36. 

2  16  Md.  331. 

«  The  Farmers  and  Mechanics'  Bank  v.  Dunning,  91  U.  S.  29;  Blitz 
V.  The  Columbia  Bank,  6  Norris,  87;  The  United  States  v.  Lathrop,  17 
Johnson,  4;  Rumpf  v.  The  Commonwealth,  6  Casey,  475. 


1182  AN   ASSIGNEE   IN  BANKRUPTCY 

of  the  otlier.^  If  the  State  courts  could  not  take  cognizance 
of  the  federal  laws,  the  federal  courts  would  for  a  like  reason 
be  precluded  from  the  exercise  of  jurisdiction  under  the  State 
laws,  except  for  the  purpose  of  considering  whether  they 
were  contrary  to,  or  forbidden  by,  the  Constitution.  When, 
for  instance,  suit  is  brought  on  a  mortgage  of  a  vessel,  it  may 
be  necessary  to  inquire,  first,  whether  the  instrument  under 
which  the  plaintiff  claims  was  duly  registered,  and  next,  is 
the  debt  due  and  unpaid  ?  The  former  question  will  depend 
on  the  laws  of  Congress,  the  latter  on  the  laws  of  the  State  ; 
and  both  must  be  taken  into  view  in  determining  the  right 
of  the  mortgagee.  Congress  may,  undoubtedly,  provide  that 
questions  under  the  legislation  or  authority  of  the  United 
States  shall  be  exclusively  considered  by  the  national  tribu- 
nals, or  for  the  removal  of  such  a  cause  from  the  State 
courts;  but  where  no  such  provision  has  been  made,  the 
State  jurisdiction  is  co-extensive  in  civil  cases  with  the  fed- 
eral, and  whichever  first  obtains  possession  of  the  cause  will 
hold  it  to  the  end,  subject  to  an  appeal  to  the  Supreme  Court 
of  the  United  States.^ 

The  principle  is  given  in  the  following  extract  from  the 
judgment  in  Claflin  v.  Houseman :  — 

"  The  laws  of  the  United  States  are  laws  in  the  several  States, 
and  just  as  much  binding  on  the  citizens  and  courts  thereof  as  the 
State  laws  are.  The  United  States  is  not  a  foreign  sovereignt}*  as 
regards  the  several  States,  but  is  a  concurrent,  and  within  its 
jurisdiction,  paramount  sovereignty.  Every  citizen  of  a  State  is  a 
subject  of  two  distinct  sovereignties,  having  concurrent  jurisdiction 
in  the  State,  —  concurrent  as  to  place  and  persons,  though  distinct 
as  to  subject-matter.  Legal  or  equitable  rights  acquired  under 
either  S3'stem  of  laws  may  be  enforced  in  anj-  court  of  either  sov- 
ereignty competent  to  hear  and  determine  such  kind  of  rights,  and 
not  restrained  b}^  its  Constitution  in  the  exercise  of  such  jurisdic- 
tion. Thus  a  legal  or  equitable  right  acquired  under  State  laws 
may  be  prosecuted  in  the  State  courts,  and  also,  if  the  parties  re- 

1  See  Ex  parte  McNiel,  13  Wallace,  236,  243;  Claflin  v.  Houseman, 
93  U.  S.  136;  Blitz  v.  The  Columbia  National  Bank,  6  Norris,  87,  93. 

2  Claflin  V.  Houseman,  93  U.  S.  130. 


MAY  PROCEED  IN  A  STATE  COURT. 


1183 


side  in  diflferent  States,  in  the  federal  courts.  So  rights,  whether 
legal  or  equitable,  acquired  under  the  laws  of  United  States  may 
be  prosecuted  in  the  United  States  courts,  or  in  the  State  courts 
competent  to  decide  rights  of  the  like  character  and  class,  —  sub- 
ject, however,  to  this  qualification,  that  where  a  right  arises  under 
a  law  of  the  United  States,  Congress  may,  if  it  see  fit,  give  to  the 
federal  courts  exclusive  jurisdiction.^  This  jurisdiction  is  some- 
times exclusive  by  express  enactment,  and  sometimes  by  implica- 
tion. If  an  act  of  Congress  gives  a  penalty  to  a  party  aggrieved, 
without  specifying  a  remedy  for  its  enforcement,  there  is  no  reason 
why  it  should  not  be  enforced  —  if  not  provided  otherwise  by  some 
act  of  Congress  —  by  a  proper  action  in  a  State  court.  The  fact 
that  a  State  court  derives  its  existence  and  functions  from  the  State 
laws  is  no  reason  why  it  should  not  afford  relief ;  because  it  is  sub- 
ject also  to  the  laws  of  the  United  States,  and  is  just  as  much 
bound  to  recognize  these  as  operative  within  the  State  as  it  is  to 
recognize  the  State  laws.  The  two  together  form  one  system  of 
jurisprudence,  which  constitutes  the  law  of  the  land  for  the  State ; 
and  the  courts  of  the  two  jurisdictions  are  not  foreign  to  each  other, 
nor  to  be  treated  by  each  other  as  such,  but  as  courts  of  the  same 
country,  having  jurisdiction  partly  different  and  partly  concurrent. 
The  disposition  to  regard  the  laws  of  the  United  States  as  ema- 
nating from  a  foreign  jurisdiction  is  founded  on  erroneous  views  of 
the  nature  and  relations  of  the  State  and  federal  governments." 

The  court  held,  in  accordance  with  this  view,  that,  al- 
though the  right  of  an  assignee  in  bankruptcy  to  administer 
the  bankrupt's  debts  and  assets  is  conferred  and  regulated 
by  Congress,  and  would  cease  if  the  act  were  unconditionally 
repealed,  the  suit  may  be  brought  in  the  State  courts,  which 
have  a  concurrent  jurisdiction  for  such  purposes  with  the 
federal  tribunals,  wherever  the  authority  of  the  latter  is  not 
exclusive  in  terms  or  by  a  necessary  implication.^ 

It  results  from  these  considerations  that  when  Congress 
confer  a  right,  and  the  act  does  not  expressly  or  impliedly 
bestow  an  exclusive  jurisdiction  on  the  national  tribunals, 

*  See  the  remarks  of  Mr.  Justice  Field  in  The  Moses  Taylor,  4  Wal- 
lace, 429,  and  Story,  J.,  in  Martin  v.  Hunter's  Lessee,  1  Wheaton,  334, 
and  of  Mr.  Justice  Swayne,  in  Ex  parte  McNeil,  13  Wallace,  236. 

2  See  Eyster  v.  Gaff,  91  U.  S.  521,  to  the  same  effect. 


1184  THE  STATE  COURTS  MAY  ADMINISTER 

the  plaintifE  may  proceed  before  them  or  in  the  State  courts, 
as  he  thinks  proper,  subject  to  a  writ  of  error  to  the  Supreme 
Court  of  the  United  States  if  the  decision  is  against  the 
right  .^ 

In  Blitz  V.  The  Columbia  National  Bank,  an  action  was 
brought  in  a  State  court,  and  sustained,  to  recover  back 
twice  the  amount  of  illegal  interest  received  by  a  national 
bank  contrary  to  the  provisions  of  the  third  section  of  the 
act  of  Congress  of  June  3,  1864.  The  demand  in  suit  was 
not  penal,  but  a  right  conferred  on  one  whose  money  had 
been  received,  and  was  withheld  contrary  to  law,  to  recover 
back  the  amount,  with  an  additional  sum  as  compensation 
for  the  injury.  The  case  did  not,  therefore,  fall  within  the 
decisions  that  a  penalty  imposed  by  the  United  States  can- 
not be  inflicted  by  a  State.  A  State  may  in  like  manner 
administer  the  naturalization  laws  of  Congress,  and  punish  a 
false  oath  taken  in  the  course  of  such  a  proceeding  as  an 
offence  against  her  laws,  although  it  is  also  an  offence  against 
the  General  Government.^  Chief-Justice  Gibson  said  that 
although  the  right  to  naturalization  arose  under  the  laws  of 
the  United  States,  yet  as  these  were  a  part  of  the  law  of  the 
land,  there  was  no  reason  why  the  rule  which  they  established 
should  not  be  followed  and  applied  by  State  tribunals. 

The  doctrine  that  a  grant  of  judicial  power  to  one  tri- 
bunal will  not  preclude  the  exercise  of  a  similar  power  by 
another  is  equally  applicable  whether  the  power  depends 
on  the  character  of  the  cause  or  of  the  parties.  Hence, 
the  grant  of  original  jurisdiction  to  the  Supreme  Court,  in 
suits  where  a  State  is  a  party,  does  not  necessarily  pre- 
clude the  maintenance  of  such  a  suit  in  a  State  court  or 
the  inferior  courts  of  the  United  States.^  That  such  is  the 
rule  as  regards  the  federal  tribunals  was  established  in  Bors 
V.  Preston  ;  *  and  it  applies  to  the  State  courts  where  they 

1  Lapham  v.  Almy,  13  Allen,  301;  Amraidown  v.  Freeland,  101  Mass. 
303;  Blitz  v.  The  Columbia  National  Bank,  6  Norris,  87. 

2  Kumpf  V.  The  Commonwealth,  6  Casey,  475. 
8  Cohen  v.  Virginia,  6  Wheaton,  264,  399. 

*  111  U.  S.  252  J  Ames  v.  Kansas,  Id.  449. 


THE  FEDERAL  LAWS. 


1185 


have  not  been  excluded  by  Congress.  The  question  arose  in 
The  State  of  Illinois  v.  Delafield,^  on  a  bill  filed  by  the  State 
of  Illinois  to  have  an  account  of  certain  bonds  which  were 
alleged  to  have  been  received  and  sold  by  the  defendant  in 
violation  of  the  right  of  the  complainant.  The  defendant 
contended  that  the  grant  of  judicial  power  to  the  federal 
courts  in  cases  where  a  State  is  a  party,  and  the  clause  by 
which  original  jurisdiction  was  conferred  in  such  instances 
on  the  Supreme  Court  of  the  United  States  rendered  the 
authority  of  that  tribunal  exclusive,  and  precluded  the  exer- 
cise of  a  concurrent  jurisdiction  by  the  States.  Bronson,  J., 
held  that  — 

"  the  question  was  virtually  decided  by  the  words  of  the  Judi- 
ciary Act,  which  declares  that  in  suits  between  a  State  and  the 
citizens  of  another  State,  or  an  alien,  the  jurisdiction  of  the  Su- 
preme Court  should  be  original,  but  not  exclusive ;  and  such  was 
manifestly  the  intention  of  the  Constitution.  The  language  by 
which  judicial  power  was  granted  to  the  United  States  did  not  in- 
dicate that  the  framers  of  that  instrument  meant  to  deprive  the 
State  courts  of  the  authority  which  they  previously  possessed. 
There  was  nothing  in  the  nature  of  jurisdiction  to  render  it  exclu- 
sive in  the  absence  of  express  words  manifesting  such  a  design. 
It  was  not  like  a  grant  of  property,  which  could  not  have  several 
owners  at  the  same  time.  Unless  the  State  courts  had  a  concur- 
rent authorit}',  there  might  be  a  failure  of  justice.  A  large  part  of 
the  judicial  power  of  the  United  States  had  never  been  vested  in 
the  federal  courts  by  the  legislation  of  Congress.  The  State  courts 
had  accordingly  exercised  a  concurrent  jurisdiction  with  the  courts 
of  the  United  States  from  the  foundation  of  the  government,  not 
only  where  those  courts  had  jurisdiction  from  the  character  of  the 
cause,  but  where  they  had  jurisdiction  from  the  character  of  the 
parties.  It  might  be,  as  the  appellant  contended,  that  whichever 
way  the  case  was  decided,  there  could  be  no  appeal  to  the  Supreme 
Court  of  the  United  States ;  but  this  did  not  prove  that  the  judicial 
power  of  the  United  States  was  exclusive.  It  only  proved  that  the 
federal  courts  might  fail  to  obtain  cognizance  of  a  cause  which  they 
could  have  heard  and  determined  if  the  party  had  not  selected  an- 


1  8  Page,  527;  2  Hill,  159. 


1186  THE  FEDERAL  JUEISDICTION  IS  NOT 

other  forum.  There  were,  indeed,  certain  instances  where  the  suit 
could  only  be  brought  in  the  courts  of  the  United  States.  Where 
a  State  was  made  defendant  the  State  courts  could  not  exercise 
jurisdiction ;  but  this  was  not  because  the  Constitution  had  for- 
bidden it,  but  because  a  sovereign  State  was  suable  onl}'  by  virtue 
of  the  consent  given  to  submit  to  the  jurisdiction  of  the  federal 
courts.  Again,  crimes  were  punishable  only  by  the  government 
against  which  the}^  were  committed,  and  the  State  courts  could  not 
enforce  the  penal  laws  of  the  United  States,  or  of  any  government 
but  their  own.  This  rested  on  a  general  principle  whoUj^  inde- 
pendent of  the  federal  Constitution.^  There  were  some  cases  where 
Congress  had  declared  the  jurisdiction  of  the  federal  courts  exclu- 
sive, but  these  were  cases  peculiar  to,  and  springing  out  of,  the 
laws  of  the  United  States,  and  not  cases  of  which  the  State  courts 
had  cognizance  prior  to  the  adoption  of  the  Constitution.  There 
was  nothing,  therefore,  in  the  Constitution  to  prevent  a  State  court 
from  taking  jurisdiction  of  a  cause  in  which  a  State  voluntarily 
appeared  as  plaintiff  or  as  defendant." 

The  doctrine  that  if  Congress  sanction  or  do  not  forbid, 
the  State  courts  may  take  cognizance  of  controversies  aris- 
ing under  the  Constitution  and  laws  of  the  United  States, 
and  even  of  actions  against  the  General  Government,  was 
applied  in  The  United  States  v.  Jones  ^  under  somewhat 
peculiar  circumstances.  The  claim  of  the  plaintiff  below 
was  for  the  damages  resulting  from  the  flowage  of  his  land 
by  a  dam  erected  by  a  canal  company  in  the  exercise  of 
the  right  of  eminent  domain  under  a  charter  conferred  by 
the  legislature  of  Wisconsin.  The  United  States,  having 
succeeded  to  the  rights  and  franchises  of  the  company  by 
purchase,  became  equitably  liable  to  the  plaintiff ;  and  an 
act  of  Congress  was  passed  authorizing  the  State  courts  to 
take  cognizance  of  the  case,  and  determine  how  much  was 
due.  The  case  was  heard  under  the  provisions  of  the  stat- 
ute, and  a  judgment  rendered  against  the  government,  which 
was  brought  before  the  Supreme  Court  of  the  United  States, 
and  affirmed  on  the  following  grounds  :  — 

^  United  States  v.  Lathrop,  17  Johnson,  4;  Scoville  v.  Canfield,  14  Id. 
338;  Story  on  Conflict  of  Laws  (2d  ed.),  516. 

2  109  U.  S.  513,  519.     See  aiite,  p.  335. 


EXCLUSIVE  OF  THE  STATE  COURTS. 


1187 


**  A  proceeding  for  the  ascertainment  of  the  value  of  the  prop- 
ert}^,  and  consequent  compensation  to  be  made,  is  merely  an  inqui- 
sition to  establish  a  particular  fact  as  a  preliminary  to  the  actual 
taking ;  and  it  maj^  be  prosecuted  before  commissioners,  or  special 
boards,  or  the  courts,  with  or  without  the  intervention  of  a  jury,  as 
the  legislative  power  may  designate.  All  that  is  required  is  that 
it  shall  be  conducted  in  some  fair  and  just  manner,  with  opportu- 
nity to  the  owners  of  the  property  to  present  evidence  as  to  its 
value,  and  to  be  heard  thereon.  Whether  the  tribunal  shall  be 
created  directly  by  an  act  of  Congress,  or  one  already  established 
by  the  States  shall  be  adopted  for  the  occasion,  is  a  mere  matter  of 
legislative  discretion. 

"  Undoubtedly  it  was  the  purpose  of  the  Constitution  to  establish 
a  General  Government  independent  of,  and  in  some  respects  supe- 
rior to,  the  jurisdiction  of  the  State  government,  —  one  which  could 
enforce  its  own  laws  through  its  own  officers  and  tribunals ;  and 
this  purpose  was  accomplished.  That  government  can  create  all 
the  officers  and  tribunals  required  for  the  execution  of  its  powers. 
Upon  this  point  there  can  be  no  question.^  Yet  from  the  time  of 
its  establishment  that  government  has  been  in  the  habit  of  using, 
with  the  consent  of  the  States,  their  officers,  tribunals,  and  institu- 
tions as  its  agents.  Their  use  has  not  been  deemed  a  violation  of 
an}'  principle,  or  as  in  any  manner  derogating  from  the  sovereign 
authority  of  the  federal  government,  but  as  a  matter  of  convenience 
and  a  great  saving  of  expense. 

*'The  use  of  the  courts  of  the  State  in  applj'ing  the  rules  of 
naturaUzation  prescribed  by  Congress,  the  exercise  at  one  time  by 
State  justices  of  the  peace  of  the  power  of  committing  magistrates 
for  violations  of  the  federal  law,  and  the  use  of  State  penitentiaries 
for  the  confinement  of  convicts  under  such  laws,  are  instances  of 
the  employment  of  State  tribunals  and  such  institutions  in  the  ex- 
ecution of  powers  of  the  General  Government.  At  different  times 
various  duties  have  been  imposed  by  acts  of  Congress  on  State 
tribunals.  They  have  been  invested  with  jurisdiction  in  civil  suits, 
and  over  complaints  and  prosecutions  for  fines,  penalties,  and  for- 
feitures arising  under  laws  of  the  United  States.*^ 

*'  The  jurisdiction  thus  conferred  could  not  be  enforced  against 
the  consent  of  the  States,  but  when  its  exercise  was  not  incompat- 

1  Kohl  V.  United  States,  91  U.  S.  367. 

2  1  Kent,  400. 


1188  JURISDICTION  OF  THE  STATE  COURTS. 

ible  with  State  duties,  and  the  State  made  no  objection  to  it,  the 
decisions  rendered  b}"  the  State  tribunals  were  upheld.  Whatever 
questions  might  arise  out  of  such  a  delegation  of  authorit}'  under 
other  circumstances,  we  can  see  none  where  the  inquiry  relates  to 
an  incidental  fact,  not  involving  in  its  ascertainment  the  exercise 
of  any  sovereign  attribute.  Almost,  if  not  quite,  from  the  first  year 
of  its  existence  it  has  been  the  practice  of  the  General  Govern- 
ment, when  necessary  to  take  private  property  for  public  uses,  to 
resort  to  State  boards  and  tribunals  to  ascertain  the  value  of  the . 
property",  and  hence  the  compensation  to  be  made.^ 

It  followed  that  the  courts  of  Wisconsin  might  well  take 
cognizaQce  under  the  authority  conferred  by  Congress. 

1  Burt  V.  Merchants'  Insurance  Co.,  106  Mass.  356;  United  States  v. 
Jones,  109  U.  S.  519. 


1^ 


LECTURE  LV. 

A  Trespass  committed  by  a  Federal  Officer  is  a  Violation  of  the  State 
Laws,  and  not  of  the  Laws  of  the  United  States,  although  he  may  be 
acting  Officially,  and  under  Color  of  a  Judicial  Writ  or  an  Act  of  Con- 
gress. —  An  Action  will  lie  in  a  State  Court  against  the  Marshal  for 
arresting  A  under  a  Writ  against  B,  or  levying  on  his  Goods;  and  so 
of  the  Seizure  of  a  Vessel  by  a  Collector  of  the  Customs  under  an  Ille- 
gal Order  from  the  President.  —  Things  or  Persons  held,  though  ille- 
gally, for  the  Government  cannot  be  taken  out  of  the  Hands  of  its 
Officers  by  a  Replevin,  or  Habeas  Corpus,  from  a  State  Court,  unless 
the  Authority  relied  on  is  a  Pretence,  or  used  as  a  Cover  for  a  Private 
Wrong.  —  The  Marshal  cannot  levy  on  Goods  attached  by  Sheriff.  — 
If  the  Court  has  Jurisdiction  of  the  Cause  and  the  Parties,  the  Judg- 
ment cannot  be  set  aside  because  the  Suit  or  Prosecution  is  founded 
on  an  Unconstitutional  Statute. 

The  answer  to  the  first  question,  suggested  in  the  previous 
chapter,  also  solves  the  second.  If  the  State  courts  can 
enforce  a  right  arising  under  the  laws  of  the  United  States, 
they  may  pass  judgment  on  the  validity  of  such  a  right  when 
it  is  set  up  as  a  defence. 

It  is  an  established  principle  that  when  a  court  of  general 
and  common-law  powers  takes  cognizance  of  a  cause  for  any 
purpose,  it  will  have  jurisdiction  of  the  cause  for  all  purposes, 
and  may  hear  and  determine  every  point  which  arises  in  the 
course  of  the  investigation.  There  is  nothing  in  the  relations 
of  the  State  and  federal  courts  to  take  suits  brought  for  in- 
juries inflicted  by  an  officer  or  agent  of  the  United  States  out 
of  the  rule.^    An  act  causing  a  deprivation  of  liberty  or 

^  Slocum  V  May  berry,  2  Wheaton,  1  \  Teall  r.  Felton,  1  Comstock,  537  ; 
12  Howard,  284. 


1190  LIABILITY  OF  STATE   AND   FEDERAL 

property,  or  which  is  prejudicial  to  the  public  health  or 
morals  is,  save  exceptionally,  an  offence  against  tlie  State 
laws,  with  which  the  courts  of  the  United  States  have  no 
concern ;  and  if  the  local  courts  could  not  intervene,  the 
injury  would  go  unredressed.^ 

It  does  not  necessarily  vary  the  case,  or  put  it  beyond  the 
reach  of  the  State  courts,  unless  Congress  so  provide,  that 
the  defendant  is  an  officer  of  the  United  States,  and  justifies 
under  a  writ  of  a  federal  tribunal  or  an  act  of  Congress. 
The  power  to  protect  the  citizen  in  the  enjoyment  of  his  life, 
liberty,  and  property  is  lodged  in  the  States,  and  not  in 
the  General  Government;  to  that  power  and  to  the  laws 
made  under  it  he  must  look  for  redress  when  his  person  or 
property  is  assailed  ;  and  the  federal  courts  cannot,  speaking 
generally,  administer  those  laws,  or  give  him  aid  unless  the 
case  is,  from  the  character  of  the  parties,  within  the  grant  of 
judicial  power  to  the  United  States.^ 

The  right  to  redress  when  a  public  officer  takes  property 
or  persons  under  color  of  an  authority  which  has  not  been 
conferred,  or  is  unconstitutional  and  therefore  in  contempla- 
tion of  law  does  not  exist,  was  tested  and  defined  in  Poindexter 
V.  Greenhow.^  The  case  there  grew  out  of  the  taking  of 
the  plaintiff's  furniture  as  a  distraint  for  taxes,  that  had  been 
tendered  in  coupons  which  Virginia  had,  by  an  act  of  March 
30,  1871,  agreed  to  receive  in  payment  for  such  dues.  He 
brought  detinue  in  the  Circuit  Court  of  the  United  States  for 
the  recovery  of  the  specific  goods ;  and  the  defence  was  that 
the  statute  of  1871  had  been  repealed  by  an  act  which  for- 
bade the  State  revenue  officers  to  accept  anything  but  gold, 
silver,  and  United  States  treasury  notes.  The  Supreme 
Court  held  that  the  plaintiff's  case  was  plain.  "  He  had  paid 
the  taxes  demanded  of  him  by  a  lawful  tender.  The  defend- 
ant had  no  authority  thereafter  to  attempt  to  enforce  other 
payment  by  seizing  his  property.     In  doing  so  he  ceased  to 

1  Civil  Rights  Cases,  15  U.  S.  3,  6,  15 ;  The  United  States  v.  Harris, 
106  Id.  639;  The  United  States  v.  Cruikshank,  92  Id.  542;  Gibbous  v, 
Ogden,  9  Wheaton,  203.     See  ante,  pp.  533,  536. 

2  See  ante,  p.  533.  «  114  U.  S.  270,  291.    See  ante,  p.  897. 


OFFICERS  FOR  TRESPASSES. 


1191 


be  an  officer  of  the  law,  and  became  a  private  wrong-doer. 
It  was  the  simple  case  of  a  private  person  who  unlawfully, 
with  force  and  arms,  seizes,  takes,  and  detains  the  personal 
property  of  another."  That  an  action  of  detinue  would  lie 
under  such  circumstances  according  to  the  law  of  Virginia, 
had  not  been  questioned.  The  right  of  recovery  seemed  to 
be  complete  unless  a  defence  could  be  made  on  the  ground 
that,  as  the  State  was  interested  in  the  controversy,  the  suit 
was  virtually  against  it,  and  could  not  be  maintained  consist- 
ently with  the  Eleventh  Amendment.  This  argument  had 
been  overruled  in  Osborn  v.  The  Bank  of  the  United  States,^ 
where  Chief-Justice  Marshall  observed  :  — 

"  Suppose  that  while  a  controversy  as  to  boundar}^  is  pending 
between  two  States,  a  collecting  officer  for  one  State  should  seize 
property  for  taxes  belonging  to  a  man  who  supposes  himself  to 
reside  in  the  other  State,  and  who  seeks  for  redress  in  the  federal 
court  of  that  State  in  which  the  oflScer  resides.  The  interest  of 
the  State  is  obvious.  Yet  it  is  admitted  that  in  such  a  case  the 
action  would  lie,  because  the  officer  might  be  treated  as  a  tres- 
passer ;  and  the  verdict  and  a  judgment  against  him  would  not  act 
directly  on  the  property  of  the  State.  That  it  would  not  so  act 
ma}',  perhaps,  depend  on  circumstances.  The  officer  may  retain 
the  amount  of  the  taxes  in  his  hands,  and  on  the  State's  proceeding 
against  him  ma}^  plead  in  bar  the  judgment  of  a  court  of  compe- 
tent jurisdiction.  If  this  plea  ought  to  be  sustained,  and  it  is  far 
from  being  certain  that  it  ought  not,  the  judgment  so  pleaded  would 
have  acted  directl}'  on  the  revenue  of  the  State  in  the  hands  of  its 
officers.  And  yet  the  argument  admits  that  the  action  in  such  a 
case  would  be  sustained.  But  suppose,  in  such  a  case,  the  party 
conceiving  himself  to  be  injured,  instead  of  bringing  an  action 
sounding  in  damages,  should  sue  for  the  specific  thing,  while  yet  in 
the  possession  of  the  seizing  officer.  It  being  admitted  in  argu- 
ment that  an  action  sounding  in  damages,  would  lie,  we  are  unable 
to  perceive  the  line  of  distinction  between  that  and  the  action  of 
detinue.  Yet  the  latter  action  would  claim  the  specific  article 
seized  for  the  tax,  and  would  obtain  it  should  the  seizure  be 
deemed  unlawful." 


1  9  Wheaton,  738-853. 


1192  FEDERAL  OFFICERS   ANSWERABLE 

This  conclusion  is  borne  out  by  the  English  decisions, 
which  establish  that  an  agent  is  not  less  answerable  in  dam- 
ages for  an  injurious  act  because  his  principal  is  beyond  or 
above  the  reach  of  process,  and  that  the  rule  holds  good  even 
when  the  principal's  exemption  is  due  to  his  dignity  or 
character  as  a  sovereign.  The  main  ground  taken  in  Poin- 
dexter  v.  Greenhow  was,  however,  that  a  State  or  the  Gen- 
eral Government  cannot  give  an  unconstitutional  command, 
and  that  an  agent  who  relies  on  such  a  mandate  is  in  effect  a 
principal. 

The  rule  laid  down  in  these  cases  with  regard  to  suits  in 
the  federal  courts  against  a  State  officer  applies,  with  an  ex- 
ception hereafter  noted,  where  the  wrong-doer  is  an  officer 
or  agent  of  the  General  Government,  and  the  sufferer  pro- 
ceeds in  a  State  tribunal.  In  both  instances  the  defendant 
is  charged  as  a  trespasser,  and  not  in  his  official  capacity ; 
the  suit  is  against  him,  and  not  against  the  sovereignty 
which  he  misrepresents.  The  State  law  is  violated,  and 
not  the  law  of  the  United  States ;  and  if  the  circumstance 
that  the  case  involves  a  federal  question  gives  the  United 
States  courts  jurisdiction,  it  is  concurrent,  and  does  not 
necessarily  exclude  the  State  tribunals.^  In  Poindexter  v. 
Greenhow,  the  United  States  Circuit  Court  had  cognizance 
because  the  wrong  was  done  under  an  act  of  the  State  legis- 
lature which  not  only  impaired  the  obligation  of  a  contract, 
but  caused  the  deprivation  which  the  Fourteenth  Amendment 
forbids ;  while,  in  Osborn  v.  The  Bank  of  the  United  States, 
the  character  of  the  plaintiff  as  a  corporation  chartered  by 
the  Government  brought  the  case  within  the  grant  of  judicial 
power  to  the  United  States,  and  but  for  these  reasons  the 
suit  not  only  might,  but  must  have  been  brought  in  the  State 
tribunals.  If  this  cannot  be  said  of  The  United  States  v.  Lee,^ 
it  is  because  the  suit  was  specifically  for. the  recovery  of  the 
land,  and  not  to  obtain  compensation  in  damages.^ 

1  See  Slocum  v.  Mayberry,  2  Wheaton,  1 ;  Teall  v.  Felton,  1  Coin- 
stock,  537,  543;  Buck  v.  Colbath,  3  Wallace,  334,  342. 

2  106  U.  S. 

3  Hagan  r.  Lucas,  10  Peters,  400;  Peck  v.  Jenness,  7  Howard,  624; 
Days  V.  Gallup,  2  Wallace,  97;  Buck  v.  Colbath,  3  Wallace,  343. 


IN  STATE  COURTa 


1193 


Reasoning  from  these  premises  we  shall  arrive  at  the  con- 
clusion that  a  recovery  may  be  had  in  a  State  tribunal 
wherever  the  local  laws  are  violated  in  obedience  to  an  in- 
jurious or  unconstitutional  mandate  from  the  General  Gov* 
ernment,  and  there  is  no  clause  in  the  Constitution  or  in  the 
acts  of  Congress  rendering  the  jurisdiction  of  the  federal 
courts  exclusive.  Such  in  effect  was  the  rule  laid  down  at 
the  outset  of  the  government,  and  that  still  prevails,  although 
it  has  been  to  some  extent  restricted  by  the  recent  course  of 
decision.  Compensation  may,  consequently,  be  obtained  in  a 
State  tribunal  for  the  seizure  of  a  vessel  or  other  chattel  in 
obedience  to  an  illegal  command  of  the  President,  or  under 
an  erroneous  interpretation  of  an  act  of  Congress,  although 
the  defendant  was  acting  on  behalf  of  the  United  States,  and, 
as  he  believed,  in  the  discharge  of  his  official  duty.^  In  Gel- 
ston  V.  Iloyt  it  was  held  not  to  be  a  good  plea  to  an  action 
in  a  New  York  court  for  the  asportation  of  a  vessel  that  the 
defendants  were  the  collector  and  surveyor  of  the  customs 
of  the  port,  and  took  the  ship  as  forfeited  to  the  United 
States  in  obedience  to  an  order  given  by  the  President  un- 
der the  provisions  of  an  act  of  Congress,  because  it  appeared 
as  matter  of  law  that  the  President  exceeded  the  authority 
conferred  by  the  act  in  issuing  the  command.  In  like  man- 
ner a  recovery  may  be  had  in  a  State  court  against  a  col- 
lector of  the  revenue  for  the  seizure  of  a  ship  'after  the 
termination  of  the  voyage  under  a  statute  authorizing  such 
a  taking  while  the  voyage  continues ;  ^  and  a  ratification  by 
the  President  will  not  operate  as  a  defence.  So  trover  was 
maintained  in  a  local  court  in  Teal  v.  Felton  against  a  post- 
master for  withholding  a  newspaper  which  had  been  sent 
through  the  mail  to  the  plaintiff,  although  he  acted  under  an 
order  from  the  Postmaster-General. 

It  does  not  vary  the  legal  aspect  of  the  case*,  or  preclude 
the  State  tribunals,  that  the  injury  complained  of  was  in- 
flicted by  an  officer  of  the  army  or  navy  on  a  man  under  his 

1  Teall  V.  Felton,  1  Comstock,  537;  12  Howard,  284;  Slocum  v.  May- 
berry,  2  Wheaton,  1 ;  Gelston  v.  Hoyt,  3  Id.  247. 

2  Otis  V.  Bacon,  7  Cranch,  589. 


1194  CARGO   ILLEGALLY  DETAINED  BY 

command,  and  the  defendant  relies  on  the  Articles  of  War 
for  his  justification.!  "  For  a  malicious  exercise,  by  a  military 
officer,  of  lawful  authority ,2  or  for  acts  of  a  military  officer  or 
court  in  excess  of  authority,  though  done  in  good  faith  toward 
persons  in  the  military  service,  and  a  fortiori  toward  persons 
who  are  not,  where  the  civil  laws  are  in  full  force,  the  person 
injured  may  obtain  redress  in  the  ordinary  way,  by  suit  against 
the  wrong-doer."  ^  In  the  words  of  Lord  Chief-Justice  Wil- 
mot,  "If  a  man  be  treated  as  a  soldier,  who  is  not  duly  listed 
or  subject  to  military  discipline,  he  has  his  action."  ■* 

In  Slocum  v.  May  berry  ^  the  plaintiff  in  error  was  surveyor 
of  the  customs  for  the  port  of  Newport,  R.  I.,  and  in  that 
capacity  seized  a  vessel,  with  the  cargo  on  board,  under  the 
directions  of  the  collector  of  the  port,  for  an  alleged  intention 
to  violate  the  embargo  which  had  been  laid  by  Congress. 
The  owner  of  the  cargo  brought  an  action  of  replevin  in  the 
State  court,  which  gave  judgment  in  his  favor;  and  a  writ  of 
error  was  taken  to  the  Supreme  Court  of  the  United  States. 
The  plaintiff  in  error  contended  that  the  seizure  was  valid 
under  the  eleventh  section  of  the  act  of  April  26,  1808,  and 

1  Wise  V.  Withers,  3  Cranch,  337;  Wilson  v.  McKenzie,  7  Hill,  95,  99; 
Wilkes  V.  Dinsman,  7  Howard,  89;  12  Id.  404;  Dynes  v.  Hoover,  20  Id. 
65,  88;  Luther  v.  Borden,  7  Id.  46,  63;  Tyler  v.  Pomeroy,  8  Allen,  480, 
484;  1  Smith's  Lead.  Cas.  (8  Am.  ed.)  1127.     See  ante,  p.  915. 

2  Wall  y.  McNamara,  cited  in  1  T.  R.  502,  533;  Governor  Wall's  Case, 
28  Howell's  State  Trials,  144,  176;  Luther  v.  Borden,  7  Howard,  46; 
Dinsman  v.  Wilkes,  12  Howard,  403,  405. 

8  "  Frye  v.  Ogle,  reported  in  the  London  Magazine  for  1746,  pp.  124, 
125,  576,  577;  stated  in  Prendergast's  Law  of  Army  Officers,  130-132, 
and  in  1  McArthur  on  Courts  Martial,  229,  344,  and  cited  in  4  Taunt. 
76,  87;  Corayn  v.  Sabine,  cited  in  Cowper,  169,  175,  176;  Swinton  v. 
Molloy,  cited  in  1  T.  R.  537;  Warden  v.  Bailey,  4  Taunt.  67;  reversed 
in  Bailey  v.  Warden,  4  M.  &  S.  400,  only  on  the  ground  that  the  act 
complained  of  was  in  one  view  within  the  scope  of  the  defendant's  mili- 
tary authority;  Wolton  v.  Gavin,  16  Q.  B.  52,  62,  70,  79;  Wise  v.  With- 
ers, 3  Cranch,  337;  Ex  parte  Watkins,  3  Peters,  208;  Dynes  v.  Hoover, 
20  Howard,  80,  81;  Fisher  v.  McGirr,  1  Gray,  45;  Massachusetts  Decla- 
ration of  Rights,  art.  28;  Wilson  v.  McKenzie,  7  Hill  (X.  Y.),  95;  "  Tyler 
V.  Pomeroy,  8  Allen,  485. 

*  Wilmot,  85,  86,  note.  «  2  Wheaton,  1. 


COLLECTOR   MAY  BE  REPLEVIED. 


1195 


that,  even  if  it  was  not,  the  case  fell  within  the  grant  of 
admiralty  jurisdiction,  and  a  State  court  could  not  interpose 
or  stay  the  proceeding  by  its  process.  In  delivering  judg- 
ment, Chief- Justice  Marshall  said  that  — 

"the  authority  given  b}^  Congress  related  only  to  the  vessel,  and 
did  not  authorize  the  detention  of  the  cargo,  which  was  withheld 
from  the  owner  contrary  to  law.  He  had,  therefore,  the  same  right 
to  it  as  to  his  other  propert}',  and  might  appeal  to  the  tribunals  of 
his  countr}'  for  relief.  The  courts  of  the  United  States  had  no 
general  or  common-law  jurisdiction  in  such  cases  ;  and  if  the  plain- 
tiff could  not  proceed  in  the  local  tribunals,  the  wrong  would  be 
without  a  remedy.  Congress  had  not  empowered  the  tribunals  of  the 
General  Government  to  decide  on  the  conduct  of  its  officers,  in  the 
execution  of  its  laws,  until  the  case  should  have  passed  through 
the  State  courts  and  received  judgment  at  their  hands.  Had  the 
cargo  been  seized  under  an  authority  conferred  by  Congress  with  a 
view  to  a  judicial  proceeding  in  the  admiralt}',  it  could  not  have 
been  withdrawn  by  process  emanating  from  any  other  source.  But 
as  the  matter  stood,  the  onh'  tribunal  in  which  the  plaintiff  could 
obtain  redress  was  the  Supreme  Court  of  Rhode  Island ;  and  as 
the  plea  filed  in  that  court  showed  no  legal  right  to  detain  the 
plaintiffs  goods,  there  was  no  reason  why  the  judgment  which  had 
been  rendered  in  his  favor  should  be  reversed."  ^ 

1  For  like  reasons  it  was  held  not  to  be  a  good  plea  to  an  action  of 
replevin  against  the  marshal,  either  in  a  State  or  national  tribunal,  that 
he  took  the  ship  in  question  under  a  judgment  rendered  by  the  Circuit 
Court  in  favor  of  the  United  States,  unless  it  is  also  averred  that  the  ship 
belonged  to  the  defendant  in  the  judgment,  or  was  not  the  property  of 
the  plaintiff  m  the  replevin.  Bruen  v.  Ogden,  6  Halstead,  370.  The 
State  courts  had  jurisdiction  in  such  cases  prior  to  the  adoption  of  the 
Constitution,  and  their  authority  must  continue  to  exist  unless  divested 
by  the  delegation  of  judicial  power  to  the  courts  of  the  United  States. 
This  grant  was  not  exclusive  or  prohibitory,  and  the  act  passed  to  carry 
it  into  effect  implied  that  the  jurisdiction  of  the  State  courts  remained 
intact.  By  the  twenty-fifth  section  of  the  act  of  1789,  the  judgment  of  a 
State  court  in  any  cause  where  a  treaty  or  statute  of,  or  authority  exer- 
cised under,  the  United  States  was  drawn  in  question,  and  the  decision 
was  against  their  validity,  might  be  removed  on  error  to  the  Supreme 
Court  of  the  United  States;  which  necessarily  presupposed  that  the  State 
courts  might  in  the  first  instance  examine  and  decide  controversies  arising 
under  the  laws  and  Constitution  of  the  United  States. 

TOL.  II.  —  35 


1196  ONE   COURT   CANNOT   REPJ^EViT   GOODS 

Although  the  above  judgment  was  in  accordance  with  the 
generally  received  opinion  when  pronounced,  the  jurisdiction 
of  the  State  courts  to  entertain  an  action  of  replevin  for  the 
recovery  of  goods,  or  issue  a  writ  of  habeas  corpus  to  liberate 
persons  taken  or  detained  under  an  authority  from  the  United 
States,  has  since  been  questioned,  and  agreeably  to  the  recent 
decisions  cannot  be  exercised  when  the  effect  will  be  to  de- 
prive the  defendant  of  a  possession  which  he  holds  under  an 
authority  given  by  the  government,  and  may  be  unable  to 
regain  whether  the  cause  is  or  is  not  determined  in  his  favor* 
Such  by  general  consent  is  now  the  rule  when  a  levy  or  seiz- 
ure is  made  under  judicial  process,  because  the  property  is 
virtually  in  the  custody  of  the  court  which  issued  the  writ, 
and  must  await  its  decision.^ 

"  It  is  a  doctrine  of  law  too  long  established  to  require  a  citation 
of  authorities  that  where  a  court  has  jurisdiction  it  has  a  right  to 
decide  every  question  which  occurs  in  the  cause,  and  whether  its 
decision  be  correct  or  otherwise,  its  judgment,  till  reversed,  is  re- 
garded as  binding  in  every  other  court ;  and  that,  where  the  juris- 
diction of  a  court,  and  the  right  of  a  plaintiff  to  prosecute  his  suit 
in  it,  have  once  attached,  that  right  cannot  be  arrested  or  taken 
away  by  proceedings  in  another  court.  These  rules  have  their 
foundation,  not  merely  in  comit}',  but  in  necessity.  For  if  one 
raaj"  enjoin,  the  other  may  retort  by  injunction,  and  thus  the  parties 
be  without  remed}-,  —  being  liable  to  a  process  for  contempt  in  one, 
if  they  dare  to  proceed  in  the  other.  Neither  can  one  take  prop- 
erty from  the  custodj'  of  the  other  by  replevin  or  any  other  process  ; 
for  this  would  produce  a  conflict  extremel}^  embarrassing  to  the 
administration  of  justice.  In  the  case  of  Kenned}'  v.  The  Earl  of 
Cassilis,  Lord  Eldon  at  one  time  granted  an  injunction  to  restram 
a  part}^  from  proceeding  in  a  suit  pending  in  the  Court  of  Sessions 
of  Scotland,  which,  on  mature  reflection,  he  dissolved ;  because  it 
was  admitted,  if  the  Court  of  Chancer}^  could  in  that  wa}-  restrain 
proceedings  in  an  independent  foreign  tribunal,  the  Court  of  Ses- 
sions might  equally  enjoin  the  parties  from  proceeding  in  chancer}', 
and  thus  they  would  be  unable  to  proceed  in  either  court.  The 
fact,  therefore,  that  an  injunction  issues  only  to  the  parties  before 

1  Howe  V.  Freeman,  20  Howard,  583;  Buck  v.  Colbath,  3  Wallace, 
327,  341. 


IN  THE  CUSTODY  OF  ANOTHER. 


1197 


the  court,  and  not  to  the  court,  is  no  evasion  of  the  diflficulties  that 
are  the  necessary  result  of  an  attempt  to  exercise  that  power  over 
a  party  who  is  a  litigant  in  another  and  independent  forum.  The 
act  of  Congress  of  March  2,  1793,  chap.  6Q,  section  5,  declares  that 
a  writ  of  injunction  shall  not  be  granted  *  to  stay  proceedings  in 
any  court  of  a  State.*  In  the  case  of  Diggs  v.  Wolcott,^  the  decree 
of  the  Circuit  Court  had  enjoined  the  defendant  from  proceeding  in 
a  suit  pending  in  a  State  court,  and  this  court  reversed  the  de- 
cree because  it  had  no  jurisdiction  to  enjoin  proceedings  in  State 
courts."  ^ 

The  point  decided  in  this  case  was  that  the  jurisdiction  of 
the  State  courts  to  enforce  a  lien  given  by  the  local  law  could 
not  be  ousted  by  the  subsequent  institution  of  proceedings  in 
bankruptcy  in  the  District  Court  of  the  United  States,  and 
that  the  latter  court  could  not  make  or  enforce  any  order 
tending  to  such  an  end ;  but  the  principle  has  a  much  wider 
scope,  and  precludes  an  attempt  on  the  part  of  any  court, 
whether  State  or  federal,  to  adopt  a  coui*se  that  will  hamper 
the  jurisdiction  of  a  co-ordinate  tribunal,  or  prevent  it  from 
giving  effect  to  a  writ  which  it  has  issued  in  the  pursuance  of 
the  authority  conferred  by  the  legislature.  If  the  officer 
who  is  charged  with  the  execution  of  a  capias  or  fieri  facias 
takes  the  wrong  thing  or  person,  he  may  be  made  personally 
responsible  in  any  court  which  has  jurisdiction  of  such  causes 
of  action  ;  but  the  question  what  shall  be  done  with  the  man 
or  chattel  belongs  exclusively  to  the  court  which  gave  the 
order. 

Whether  property  which  has  been  taken  in  execution  does 
or  does  not  belong  to  the  defendant,  it  cannot  be  withdrawn 
from  the  hands  of  the  marshal  or  sheriff  by  another  tribunal.^ 
In  Howe  v.  Freeman,  the  marshal  levied  on  the  property  of 
A,  under  an  attachment  against  B,and  it  was  held,  reversing 
the  judgment  of  the  Supreme  Court  of  Massachusetts,  that 
the  rightful  owner  could  not  regain  the  possession  of  his  goods 

1  4  Cranch,  179. 

^  Peck  V.  Jenness,  7  Howard,  624. 

8  Howe  V.  Freeman,  14  Gray,  566;  20  Howard,  583;  Buck  v.  Colbath, 
3  Wallace,  334,  346;  Covell  v.  Hayman,  111  U.  S.  176. 


1198       A  STATE  COURT  CANNOT  REPLEVY 

through  the  intervention  of  a  State  court,  or  any  tribunal 
except  that  which  issued  the  writ,  and  was  entitled  to  the 
exclusive  control  of  its  own  process.  Although  this  con- 
clusion was  contrary  to  the  generally  received  opinion  as  given 
in  Kent's  Commentaries,^  and  took  the  profession  by  surprise, 
it  is  now  generally  accepted.  Such  cases  do  not,  as  the  court 
below  supposed,  fall  within  the  rule  laid  down  in  Slocum  v, 
Mayberry,  because  the  act  is  done  under  judicial  process,  and 
because  the  mistake  of  the  officer  is  not  as  to  the  existence 
and  extent  of  his  authority,  but  in  applying  it  to  the  facts. 
Were  the  marshal  to  take  the  defendant  into  custody  under 
an  order  to  levy  on  his  goods,  a  different  question  would  be 
presented,  and  the  prisoner  might  perhaps  be  discharged 
collaterally  by  a  habeas  corpus.  The  judgment  in  Howe  v. 
Freeman  was  reviewed  soon  afterwards  in  Buck  v.  Colbath,^ 
when  the  court  took  occasion  to  declare  that  they  were  — 

"  entu'ely  satisfied  with  it,  and  with  the  principle  upon  which  it 
is  founded,  —  a  principle  which  is  essential  to  the  dignity  and  just 
authority  of  every  court,  and  to  the  comity  which  should  regulate 
the  relations  between  all  courts  of  concurrent  jurisdiction.  That 
principle  is,  that  whenever  propertj'  has  been  seized  by  an  oflQcer 
of  the  court,  by  virtue  of  its  process,  the  property  is  to  be  con- 
sidered as  in  the  custody  of  the  court,  and  under  its  control  for  the 
time  being,  and  that  no  other  court  has  a  right  to  interfere  with 
that  possession,  unless  it  be  some  court  which  may  have  a  direct 
supervisory  control  over  the  court  whose  process  has  first  taken 
possession,  or  some  superior  jurisdiction  in  the  premises.  This  is 
the  principle  upon  which  the  decision  of  this  court  rested  in  Ta3'lor 
V.  Carrjl,^  and  Hagan  v.  Lucas,^  both  of  which  assert  substantiall}'' 
the  same  doctrme.  A  departure  from  this  rule  would  lead  to  the 
utmost  confusion,  and  to  endless  strife  between  courts  of  concur- 
rent jurisdiction,  deriving  their  powers  from  the  same  source ;  but 
how  much  more  disastrous  would  be  the  consequences  of  such  a 
course  in  the  conflict  of  jurisdiction  between  courts  whose  powers 
are  derived  from  entirely  different  sources,  while  their  jurisdiction 
is  concurrent  as  to  the  parties  and  the  subject-matter  of  the  suit. 

1  Vol.  i.  p.  410.  2  3  Wallace,  327,  341. 

8  20  Howard,  583.  *  10  Peters,  400. 


GOODS  LEVIED  ON  BY  A  FEDERAL  COURT. 


1199 


"  This  principle,  however,  has  its  limitations,  or  rather,  its  just 
definition  is  to  be  attended  to.  It  is  only  while  the  property  is  in 
possession  of  the  court,  either  actually  or  constructively,  that  the 
court  is  bound  or  professes  to  protect  that  possession  from  the 
process  of  other  courts.  Whenever  the  litigation  is  ended,  or 
the  possession  of  the  officer  or  court  is  discharged,  other  courts  are 
at  liberty  to  deal  with  it  according  to  the  rights  of  the  parties  be- 
fore them,  whether  those  rights  require  them  to  take  possession  of 
the  property  or  not.  The  effect  to  be  given  in  such  cases  to  the 
adjudications  of  the  court  first  possessed  of  the  property,  depends 
upon  principles  familiar  to  the  law,  but  no  contest  arises  about  the 
mere  possession,  and  no  conflict  but  such  as  may  be  decided  with- 
out unseemly  and  discreditable  collisions. 

*'  It  is  upon  this  ground  that  the  court,  in  Day  v.  Gallup,  held 
that  this  court  hud  no  jurisdiction  of  that  case.  The  property 
attached  had  been  sold,  and  the  attachment  suit  ended,  when  the 
attaching  officer  and  his  assistants  were  sued ;  and  we  held  that 
such  a  suit  in  the  State  court,  commenced  after  the  proceedings  in 
the  federal  court  had  been  concluded,  raised  no  question  for  the 
jurisdiction  of  this  court.  It  is  obvious  that  the  action  of  trespass 
against  the  marshal,  in  the  case  before  us,  does  not  interfere  with 
the  principle  thus  laid  down  and  limited.  The  federal  court  could 
proceed  to  render  its  judgment  in  the  attachment  suit,  could  sell 
and  deliver  the  property  attached,  and  have  its  execution  satisfied, 
without  any  disturbance  of  its  proceedings,  or  any  contempt  of  its 
process,  while  at  the  same  time  the  State  court  could  proceed  to 
determine  the  questions  before  it,  involved  in  the  suit  against  the 
marshal,  without  interfering  with  the  possession  of  the  property  in 
dispute." 

As  the  language  held  in  the  above  instance  shows,  all 
courts  are  within  the  principle  as  regards  cases  coming  under 
their  jurisdiction,  and  it  can  no  more  be  disregarded  by  the 
courts  of  the  United  States  than  by  a  State  tribunal.  Things 
which  have  been  levied  on  under  a  writ  issued  by  a  State 
court  cannot,  therefore,  be  taken  from  the  officer  by  a  pro- 
ceeding instituted  in  a  federal  court,  or  in  any  tribunal  ex- 
cept that  to  which  he  is  directly  answerable.^  They  are, 
moreover,  from  the  moment  at  which  the  levy  is  made,  in 

^  Hagan  v.  Lucas,  10  Peters,  400;  Peck  v.  Jenness,  7  Howard,  624. 


1200     THE  MARSHAL  CANNOT  LEVY  ON  GOODS 

the  custody  of  the  law,  and  cannot  be  subjected  to  any  writ 
or  process  which  is  at  variance  with  the  purpose  for  whichi 
the  execution  was  issued.^  When  the  sheriff  has  levied, 
and  other  writs  are  subsequently  placed  in  his  hands,  he 
may  proceed  to  a  sale  under  all,  and  distribute  the  proceeds 
among  the  respective  claimants  according  to  priority ;  and  so 
of  a  levy  and  sale  by  a  marshal  under  successive  executions 
from  a  circuit  or  district  court  of  the  United  States.  But  the 
marshal  cannot  levy  upon  property  which  has  already  been 
taken  in  execution  by  the  sheriff,  nor  can  the  sheriff  adopt 
such  a  course  relatively  to  the  marshal.  Such  a  course  would 
give  rise  to  a  conflict  of  jurisdiction  that  might  seriously  im- 
pede the  administration  of  justice.^  The  rule  applies  so  long 
as  the  goods  are  subject  to  the  control  of  the  court,  for  the 
purposes  of  the  suit,  whether  they  are  or  are  not  held  by  the 
officer.  In  Hagan  v.  Lucas,  chattels  which  had  been  levied 
on  as  the  property  of  the  defendant  in  the  writ  were  deliv- 
ered to  a  third  person  who  claimed  them  as  his  own  under  a 
forthcoming  or  interpleader  bond ;  and  it  was  held  that  his 
custody  was  substituted  for  that  of  the  sheriff,  and  that  it 
was  still  in  the  keeping  of  the  law,  and  could  not  be  taken 
in  execution  by  the  marshal.  In  Taylor  v.  Carryl,^  goods 
which  had  been  taken  by  the  sheriff  under  a  writ  of  foreign 
attachment  were  sold  as  perishable  ;  and  it  was  decided  that 
the  purchaser  acquired  a  valid  title  as  against  a  claimant  un- 
der a  proceeding  in  the  admiralty  which  was  not  instituted 
until  after  the  State  court  had  obtained  jurisdiction  through 
the  levy  made  by  the  sheriff.  The  court  held  that  property 
seized  by  the  sheriff  under  the  process  of  attachment  from 
the  State  court,  and  while  in  the  custody  of  the  officer,  could 
not  be  levied  on  or  taken  from  him  by  process  from  the  Dis- 
trict Court  of  the  United  States.  An  attempt  by  the  mar- 
shal to  seize  it,  through  a  notice  or  otherwise,  was  a  nullity, 
and  gave  the  court  no  jurisdiction.     To  give  jurisdiction  in 

1  Taylor  v.  Carryl,  20  Howard,  594. 

2  Hagan  v.  Lucas,  10  Peters,  400,  403. 

8  12  Harris,  259;  20  Howard,  583.     See  ante,  p.  1018. 


ATTACHED  BY  SHEKIFF.  1201 

a  proceeding  in  rem^  there  must  be  a  valid  seizure  and  an 
actual  control  of  the  res  under  the  process. 

The  principle  is  applicable  to  persons,  and  even  more  im- 
portant where  they  are  concerned  than  as  regards  property. 
If  a  man  who  has  been  committed  and  is  held  for  trial  could 
be  withdrawn  from  the  custody  of  the  appropriate  tribunal 
by  a  writ  issued  from  another  court,  the  course  of  criminal 
procedure  might  be  indefinitely  delayed  and  the  claims  of 
justice  frustrated.  It  is  immaterial  that  the  statute  which 
the  prisoner  is  charged  with  violating  is  alleged  to  be  uncon- 
stitutional, because  the  authority  of  the  court  to  determine 
his  guilt  or  innocence  is  derived  from  the  law  which  called  it 
into  being,  and  exists  whether  the  law  which  it  is  required 
to  enforce  or  administer  is  or  is  not  valid. 

In  Passmore  Williamson's  Case,^  the  Supreme  Court  of 
Pennsylvania  refused  to  issue  a  habeas  corpus  for  the  body  of 
the  petitioner  who  had  been  committed  for  a  contempt  of 
court,  in  a  proceeding  under  the  Fugitive  Slave  Law  of  the 
United  States.     Black,  J.,  said :  — 

*'  If  the  law  under  which  the  federal  court  proceeded  was  uncon- 
stitutional, any  judgment  that  might  be  pronounced  under  it  would 
be  equally  invalid  with  the  law.  A  void  judgment  was  to  be  re- 
garded as  no  judgment,  and  every  judgment  was  void  which  clearly 
appeared  to  have  been  pronounced  by  a  court  having  no  jurisdiction 
over  the  subject-matter.  Were  a  federal  court  to  try  and  sentence 
a  citizen  for  a  libel,  or  were  a  State  court  whose  jurisdiction  was 
confined  to  civil  pleas  to  entertain  an  indictment  for  a  crime  and 
convict  the  accused,  the  judgment  would  in  either  case  be  merely 
void.  When,  however,  a  case  fell  within  the  general  jurisdiction 
of  a  tribunal,  it  was  bound  to  hear  and  determine  the  case  accord- 
ing to  law.  A  multitude  of  questions  might  arise  during  the  pro- 
ceedings, and  among  them,  whether  the  statute  which  the  accused 
was  charged  with  violating  was  constitutional.  But  this  would  not 
deprive  the  court  of  jurisdiction.  It  would  still  be  the  duty  of  the 
iudges  to  proceed  with  the  investigation  until  it  was  concluded ; 
and  they  might,  for  the  purpose  of  so  doing,  exercise  an  authority 
in  the  premises  which  could  not  be  challenged  collaterally." 

1  2  Casey,  1. 


1202  JUDGMENT  RENDEEED  UNDER 

This  decision  was  followed  by  another  which,  coming  from 
the  Supreme  Court  of  the  United  States,  rendered  the  rule 
indisputable.  Both  cases  grew  out  of  the  Fugitive  Slave 
Law,  which,  though  intended  to  guard  Southern  rights,  con- 
tributed to  evoke  the  passions  which  led  to  civil  war  and  the 
abolition  of  slavery.  It  was  followed  by  a  close  hunt  for 
persons  who  had  fled  from  "labor"  of  their  own  accord,  or 
at  the  instigation  of  emissaries  who  were  believed  to  be 
sowing  the  seeds  of  discontent  and  insurrection  through  the 
plantations.  Men  who  had  been  domiciled  for  many  years 
at  the  North,  and  were  believed  by  their  friends  not  to  be- 
long to  a  master,  or  at  all  events  not  to  him  by  whom  they 
were  claimed,  were  taken  from  their  families  and  returned 
to  slavery  after  a  summary  investigation  which  could  hardly 
be  regarded  as  the  due  process  of  law  guaranteed  by  the 
Fifth  Amendment.  Such  a  spectacle  appealed  to  the  best 
instincts  of  our  nature,  and  not  only  the  party  which  was  for 
emancipation  at  any  cost,  but  many  who  did  not  share  their 
views,  held  that  the  act  was  unconstitutional  and  could  not 
rightfully  be  enforced  by  the  courts.  It  was  as  sincerely  felt 
by  others  that  the  only  security  for  the  Union  lay  in  a  close 
observance  of  the  federal  bond ;  if  that  was  violated,  incalcu- 
lable mischief  would  ensue.  The  currents  of  political  feeling 
were  temporarily  reversed,  and  the  party  which  had  generally 
upheld  was  now  disposed  to  narrow  the  jurisdiction  of  the 
federal  courts.  The  question  came  to  an  issue  in  Abelman  v, 
Booth,^  and  was  decided  in  favor  of  the  United  States  on 
grounds  which  are  independent  of  the  validity  of  the  Fugi- 
tive Slave  Law,  and  equally  conclusive  whether  it  could  or 
could  not  constitutionally  be  passed  by  Congress. 

The  controversy  arose  out  of  the  commitment  and  convic- 
tion of  Booth,  by  the  United  States  District  Court,  under  an 
indictment  for  an  offence  in  violating  the  Fugitive  Slave 
Law.  A  habeas  corpus  was  thereupon  issued  by  the  Supreme 
Court  of  Wisconsin,  and  an  order  given  for  his  discharge  on 
the  assumption  that  the  law  transgressed  the  limits  of  the 
Constitution,  and  no  man  was  punishable  for  resisting  its 

1  21  Howard,  506. 


UNCONSTITUTIONAL   STATUTE  IS   NOT   VOID. 


1203 


provisions.  It  was  conceded  that  such  intervention  is  inad- 
missible where  a  prisoner  is  held  under  the  sentence  of  a 
tribunal  having  jurisdiction  of  the  cause ;  but  it  was  con- 
tended that  the  statute  under  consideration  was  merely  void, 
and  no  proceedings  instituted  to  carry  it  into  effect  could  be 
valid.  The  Wisconsin  court,  therefore,  not  only  sustained 
the  action  of  one  of  its  justices  in  discharging  a  man  who  had 
been  committed  by  a  United  States  Commissioner  for  aiding 
and  abetting  the  escape  of  a  fugitive  slave  from  the  deputy- 
marshal  who  had  him  in  charge,  under  a  warrant  issued  by 
the  district  judge  of  the  United  States,  but  liberated  him 
from  the  prison  to  which  he  had  been  subsequently  sen- 
tenced by  the  District  Court  of  the  United  States,  after  trial 
and  conviction,  and  directed  its  clerk  to  refuse  obedience  to 
a  writ  of  error  issued  to  bring  up  the  decision  for  review. 
No  pretension  could  well  be  more  unfounded,  or  have  a 
greater  tendency  to  disturb  the  order  which  is  essential  to 
the  administration  of  justice.  It  was  unhesitatingly  over- 
ruled by  the  Supreme  Court  of  the  United  States,  and  the 
prisoner  remanded  to  serve  out  his  term.  The  sentence  had 
been  pronounced  in  a  case  arising  under  the  laws  of  the 
United  States,  and  was  directly  within  the  grant  of  judicial 
power  of  the  General  Government.  It  was  imposed  by  a 
court  constituted  by  Congress  to  carry  the  grant  into  effect, 
and  could  not  be  set  aside  by  a  State  court,  or  by  any  tri- 
bunal short  of  the  national  court  of  last  resort.  There  is  a 
material  difference  between  the  question  whether  the  statute 
which  creates  the  offence  is  constitutional,  and  the  question 
whether  the  offence  is  within  the  jurisdiction  of  the  court  by 
which  the  offender  is  tried  and  sentenced.  The  former  ob- 
jection does  not  affect  the  authority  of  the  court,  and  will, 
therefore,  like  every  other  concerning  the  guilt  or  innocence 
of  the  accused,  be  concluded  by  the  sentence  so  long  as  it 
is  standing  and  unreversed.  If  the  latter  is  valid  the  sen- 
,  tence  is  null,  and  the  accused  may  be  liberated  by  the  Su- 
preme Court  of  the  United  States  on  a  habeas  corpus}  ■ 

1  See  1  Smith's  Lead.  Cas.  (8  Am.  ed.)  1111;  Bradley  v.  Fisher,  13 
Wallace,  335,  352.     See  ante,  p.  1162. 


1204  A  STATE  COURT  CANNOT  LIBERATE 

As  was  observed  by  Chief- Justice  Black  in  Passmore  Wil- 
liamson's Case,  a  judgment  manifestly  without  jurisdiction  is 
coram  non  judiee  and  void,  and  cannot  be  relied  on  as  a  de- 
fence or  justification.^  Such  seemingly  would  be  the  case 
were  a  circuit  court  of  the  United  States  to  take  cognizance 
of  a  homicide  committed  in  Pennsylvania,  unless  the  act  was 
averred  and  proved  to  have  been  done  in  some  place  which 
had  been  ceded  by  the  State  to  the  General  Government.^ 
Whether  recourse  must  be  had  under  such  circumstances  to 
a  federal,  or  relief  may  be  given  b}^  a  State  tribunal,  seems 
to  be  an  open  question,  which  did  not  arise  in  Abelman  v. 
Booth. 

The  doctrine  that  a  thing  or  person  held  for  adjudication 
under  an  authority  conferred  by  law,  cannot  be  taken  out  of 
the  hands  of  the  proper  officer,  applies  whether  the  tribunal 
which  has  taken  cognizance  of,  or  is  to  determine  the  cause 
be  military  or  civil.  It  is  therefore  a  good  return  to  a  habeas 
corpus  that  the  prisoner  is  held  as  a  deserter  from  the  service 
of  the  United  States,  because  he  must  await  the  judgment  of 
the  court-martial  which  will  presumably  be  convened  to  decide 
the  cause.  Whether  the  federal  courts  may  discharge  in 
such  cases,  on  the  ground  that  the  relator  is  under  age, 
or  was  not  mustered  into  the. service,  does  not  appear;  but 
it  seems  that  a  State  court  will  be  bound  by  the  return, 
unless  it  is  manifestly  fraudulent  or  evasive.'"^  "  There  is," 
said  Gibson,  J.,  in  The  Commonwealth  v.  Gamble,  "  another 
ground  on  which  the  person  whose  liberation  is  requested 
must  be  remanded.  It  appears  from  the  return  to  the  writ  of 
habeas  corpus  that  he  is  in  confinement  upon  a  charge  of 
desertion  from  his  post,  and  the  law  is  clear  that  he  must 
abide  the  sentence  of  a  court-martial  before  he  can  contest 
the  validity  of  his  enlistment." 

In  the  above  instances,  the  question  arose  out  of  the  exe- 
cution of  judicial  process,  and  an  arbitrary  seizure  or  arrest 

1  See  Bradley  v.  Fisher,  13  Wallace,  335,  352. 

2  See  ante,  p.  1142. 

3  See  The  Commonwealth  v.  Gamble,  11  S.  &  R.  93;  Shirk's  Case,  3 
Grant,  460;  5  Philadelphia,  339. 


PEESONS   HELD  BY  THE  UNITED   STATES.  1205 

by  an  officer  or  agent  of  the  United  States,  acting  min- 
isterially, will  not  necessarily  render  his  possession  that  of 
the  government  which  he  affects  to  represent,  or  preclude 
the  State  courts  from  liberating  the  prisoner  or  restoring  the 
goods.^ 

Jurisdiction  may  nevertheless  attach  and  be  exclusive  with- 
out a  judicial  writ  or  a  warrant  from  a  magistrate.  Every 
government  may  provide  what  steps  shall  be  requisite  to  bring 
a  case  within  the  cognizance  of  its  tribunals,  and  a  taking 
on  the  high  seas  or  by  a  collector  of  the  revenue  may  be  as 
effectual  for  this  end  as  a  capias  or  summons.  It  is  enough 
that  the  seizure  is  duly  made,  and  will  result  in  bringing  the 
property  before  a  competent  tribunal  for  adjudication.  The 
federal  courts  have  by  the  judiciary  act  exclusive  cognizance 
of  all  seizures  under  the  laws  of  the  United  States,  by  land 
or  water ;  and  if  the  officer  who  has  the  property  in  his 
keeping  fails  to  institute  proceedings  to  ascertain  the  forfeit- 
ure, the  District  Court  may  proceed  to  an  adjudication  at  the 
owner's  instance,  or  that  of  any  party  in  interest  who  is 
aggrieved.2 

It  follows  that  any  intervention  on  the  part  of  a  State 
that  will  obstruct  the  exercise  of  this  jurisdiction  by  taking 
the  thing  seized  out  of  the  officer's  possession  is  unwarrant- 
able, and  the  federal  court  may  enforce  a  re-delivery  by 
attachment  or  other  summary  process.^  Goods  that  have 
arrived  in  port  and  have  not  yet  passed  through  the  custom- 
house are  within  this  principle,  because  they  are  construc- 
tively in  the  custody  of  the  United  States,  and  may  be  so 
held  until  their  nature,  value,  and  the  duties  can  be  ascer- 
tained and  paid.  They  cannot  therefore  be  levied  on  or 
taken  in  execution  by  the  sheriff,  or,  as  we  may  infer,  the 
marshal,  at  the  suit  of  an  individual,  or  for  the  purpose  of 
carrying   a  judgment  in  personam  into  effect.*      A  merely 

1  Taylor  v.  Carryl,  24  Pa.  299;  20  Howard,  583;  Slocum  v.  Maybeny, 
•   2  Wheaton,  1. 

2  See  post,  p.  1206,  note. 

8  Gelston  y.  Hoyt,  3  Wheaton,  246,  312;  Slocum  v.  Mayberry,  2  Id.  1. 
*  Harris  v.  Dennie,  3  Peters,  292. 


1206       DETENTION  OF  CAKGO  BY  COLLECTOR 

illegal  seizure,  —  as,  for  example,  the  detention  of  a  cargo 
by  a  revenue  officer,  under  a  statute  which  simply  author- 
izes the  seizure  of  the  vessel,  —  is  not  within  the  rule,  al- 
though made  in  good  faith,  under  a  supposed  authority  from 
Congress,  and  may,  on  the  contrary,  like  any  other  breach  of 
the  local  laws,  be  remedied  through  an  action  of  replevin  or 
for  damages  in  a  State  tribunal. 

In  Slocum  v.  Mayberry,  already  cited,  the  question  arose 
out  of  the  detention  of  the  cargo  by  the  collector  of  the  cus- 
toms, under  an  act  of  Congress  authorizing  the  seizure  of  the 
vessel,  and  it  was  held  that  the  injured  party  might  bring 
replevin,  or.  have  recourse  to  any  other  remedy  that  would 
have  been  open  to  him  had  the  taking  been  an  ordinary 
trespass,  and  not  under  color  of  an  authority  from  the 
United  States.^ 

1  The  principles  which  govern  in  such  cases  are  clearly  stated  in  the 
following  extract  from  the  judgment  in  Slocum  v.  Mayberry,  and  still 
prevail  unless  they  are  to  be  regarded  as  overruled  by  the  dicta  in  Tar- 
ble's  Case :  — 

"  The  judiciary  act  gives  to  the  federal  courts  exclusive  cognizance  of  all 
seizures  made,  on  land  or  water.  Any  intervention  of  a  State  authority 
which,  by  taking  the  thing  seized  out  of  the  possession  of  the  officer  of 
the  United  States,  might  obstruct  the  exercise  of  this  jurisdiction,  would 
unquestionably  be  a  violation  of  the  act ;  and  the  federal  court  having 
cognizance  of  the  seizure  might  enforce  a  re-delivery  of  the  thing  by 
attachment  or  other  summary  process  against  the  parties  who  should 
devest  such  a  possession.  The  party  supposing  himself  aggrieved  by  a 
seizure  cannot,  because  he  considers  it  tortious,  replevy  the  property  out 
of  the  custody  of  the  seizing  officer,  or  of  the  court  having  cognizance  of 
the  cause.  If  the  officer  has  a  right,  under  the  laws  of  the  United  States, 
to  seize  for  a  supposed  forfeiture,  the  question  whether  that  forfeiture  has 
been  actually  incurred  belongs  exclusively  to  the  federal  courts,  and  can- 
not be  drawn  to  another  forum ;  and  it  depends  upon  the  final  decree  of 
such  courts  whether  such  seizure  is  to  be  deemed  rightful  or  tortious.  If 
the  seizing  officer  should  refuse  to  institute  proceedings  to  ascertain  the 
forfeiture,  the  District  Court  may,  upon  the  application  of  the  aggrieved 
party,  compel  the  officer  to  proceed  to  adjudication,  or  to  abandon  the 
seizure.  And  if  the  seizure  be  finally  adjudged  wrongful,  and  without 
reasonable  cause,  he  may  proceed,  at  his  election,  by  a  suit  at  common 
law,  or  in  the  admiralty  for  damages  for  the  illegal  act.  Yet,  even  in 
that  case,  any  remedy  which  the  law  may  afford  to  the  party  supposing 


UNDER  AUTHORITY  TO   SEIZE  VESSEL. 


1207 


himself  to  be  aggrieved,  other  than  such  as  might  be  obtained  in  a  court 
of  admiralty,  could  be  prosecuted  only  in  the  State  court.  The  common- 
law  tribunals  of  the  United  States  are  closed  against  such  applications, 
were  the  party  disposed  to  make  them.  Congress  has  refused  to  the 
courts  of  the  Union  the  power  of  deciding  on  the  conduct  of  their  officers 
in  the  execution  of  their  laws,  in  suits  at  common  law,  until  the  case 
shall  have  passed  through  the  State  courts,  and  have  received  the  form 
which  may  there  be  given  it.  This,  however,  being  an  action  which 
takes  the  thing  itself  out  of  the  possession  of  the  officer,  could  certainly 
not  be  maintained  in  a  State  court,  if,  by  the  act  of  Congress,  it  was 
seized  for  the  purpose  of  being  proceeded  against  in  the  federal  court. 

"  A  very  brief  examination  of  the  act  of  Congress  will  be  sufficient 
for  the  inquiry  whether  this  cargo  was  so  seized.  The  second  section  of 
the  act,  pleaded  by  the  defendant  in  the  original  action,  only  withholds 
a  clearance  from  a  vessel  which  has  committed  the  offence  described  in 
that  section.  This  seizure  was  made  under  the  eleventh  section,  which 
enacts  that  '  the  collectors  of  the  customs  be,  and  they  are  hereby  respect- 
ively authorized  to  detain  any  vessel  ostensibly  bound  with  a- cargo  to 
some  other  port  of  the  United  States,  whenever,  in  their  opinion,  the 
intention  is  to  violate  or  evade  any  of  the  provisions  of  the  acts  laying 
an  embargo,  until  the  decision  of  the  President  of  the  United  States  be 
had  thereupon.' 

"  The  authority  given  respects  the  vessel  only.  The  cargo  is  in  no 
manner  the  object  of  the  act.  It  is  arrested  in  its  course  to  any  other 
port  by  the  detention  of  the  vehicle  in  which  it  was  to  be  earned;  but  no 
right  is  given  to  seize  it  specifically,  or  to  detain  it  if  separated  from  that 
vehicle.  It  remains  in  custody  of  the  officer,  simply  because  it  is  placed 
in  a  vessel  which  is  in  his  custody;  but  no  law  forbids  it  to  be  taken  out 
of  that  vessel,  if  such  be  the  will  of  the  owner.  The  cargoes  thus  arrested 
and  detained  were  generally  of  a  perishable  nature,  and  it  would  have 
been  wanton  oppression  to  expose  them  to  loss  by  unlimited  detention, 
in  a  case  where  the  owner  was  willing  to  remove  all  danger  of  expor- 
tation. .  .  .  l;his  being  the  true  construction  of  the  act  of  Congress, 
the  owner  has  the  same  right  to  his  cargo  that  he  has  to  any  other  prop- 
erty, and  may  exercise  over  it  every  act  of  ownership  not  prohibited  by 
law.  He  may,  consequently,  demand  it  from  the  officer  in  whose  pos- 
session it  is,  that  officer  having  no  legal  right  to  withhold  it  from  him ; 
and  if  it  be  withheld,  he  has  a  consequent  right  to  appeal  to  the  laws  of 
his  country  for  relief. 

"  To  what  court  can  this  appeal  be  made?  The  common-law  courts  of 
the  United  States  have  no  jurisdiction  in  the  case.  They  can  afford  him 
no  relief.  The  party  might,  indeed,  institute  a  suit  for  redress  in  the 
District  Court  acting  as  an  admiralty  and  revenue  court ;  and  such  court 
might  award  restitution  of  the  property  unlawfully  detained.  But  the 
act  of  Congress  neither  expressly  nor  by  implication  forbids  the  State 


1208  ILLEGAL  SEIZUEE. 

courts  to  take  cognizance  of  suits  instituted  for  property  in  possession  of 
an  officer  of  the  United  States  not  detained  under  some  law  of  the  United 
States;  consequently,  their  jurisdiction  remains.  Had  this  action  been 
brought  for  the  vessel  instead  of  the  cargo,  the  case  would  have  been 
essentially  different.  The  detention  would  have  been  by  virtue  of  an 
act  of  Congress,  and  the  jurisdiction  of  a  State  court  could  not  have  been 
sustained.  But  the  action  having  been  brought  for  the  cargo,  to  detain 
which  the  law  gave  no  authority,  it  was  triable  in  the  State  court." 


LECTUEE    LVI. 

Persons  held  ministerially  by  a  Federal  officer  under  an  unconstitutional 
Command  or  Statute  of  the  United  States  might  formerly  be  liberated 
by  a  Habeas  Corpus  from  a  State  Tribunal.  —  It  is  now  a  conclusive 
Answer  to  such  a  Writ  that  the  Petitioner  is  "  Confined  under  the 
Authority  or  Claim  or  Color  of  the  Authority  of  the  United  States  by 
an  officer  of  that  Government."  —  The  return  to  the  Habeas  Corpus 
must  nevertheless  set  forth  enough  to  show  distinctly  that  the  Impris- 
onment is  under  the  Authority  of  the  United  States  and  to  exclude 
the  idea  of  Imposition  or  Oppression.  —  A  State  Court  cannot  restrain 
an  officer  of  the  United  States  in  the  Performance  of  a  Duty  imposed 
by  Congress,  whether  the  act  be  or  be  not  Constitutional.  —  Although 
a  Habeas  Corpus  or  Replevin  may  not  be  issued  by  a  State  Court  for 
Things  or  Persons  wrongfully  taken  or  held  for  the  United  States,  the 
officer  may  be  made  Personally  Answerable  in  Trover  or  Trespass.  — 
Distinction  between  proceedings  in  rem,  which  are  a  Justification  against 
all  the  World,  and  a  Foreign  Attachment,  or  Fieri  facias,  which  only 
binds  the  Defendant's  Interest  in  the  Goods.  —  The  Sheriff  or  Marshal 
will  not  ordinarily  be  enjoined  from  selling  the  Goods  of  one  man  under 
a  Writ  against  another,  and  the  Remedy  is  an  Act  against  him  or  the 
Purchaser.  —  A  State  Court  cannot  enjoin  Proceedings  in  the  Federal 
Courts,  and  the  Federal  Courts  are  forbidden  to  issue  an  Injunction  to 
the  State  Courts.  —  A  State  cannot  punish  an  offence  against  the  Laws 
of  the  United  States.  —  A  false  Oath  in  a  State  Court  m  the  Adminis- 
tration of  a  Law  of  the  United  States  may  be  Punished  by  the  State. 
—  Acts  which  are  prejudicial  to  a  State  and  the  United  States  may  be 
Punished  by  both  Governments.  —  A  Penal  Law  of  the  United  States 
may  be  adopted  by  a  State,  and  will  then  be  Indictable  in  its  Courts. 

The  jurisdiction  of  the  State  courts  to  liberate  persons 
taken  or  held  ministerially,  in  the  illegal  or  undue  exercise 
of  a  power  conferred  by  Congress,  was  asserted  at  an  early 
period  in  the  history  of  the  government,  and  though  ques- 
tioned in  Ferguson's  Case,^  has  been  repeatedly  exercised  for 
the  discharge  of  minors  mustered  into  the  military  service  of 
the  United  States  without  the  consent  of  their  parents,  con- 
trary to  the  regulation  made  by  Congress.^ 

1  9  Johnson,  239. 

=*  State  V.  Rutter;  State  v.  Brearly,  2  Southard,  555;  Commonwealth 
V.  Harrison,  11  Mass.  63;  State  v.  Dimick,  12  N.  H.  194;  In  the  Mat- 


1210  CAN  A   STATE  COURT  LIBERATE 

The  jurisdiction  was  vindicated  in  these  instances,  and  in 
Lockington's  Case,^  on  the  ground  that  an  invasion  of  the 
right  of  personal  liberty  is  prima  facie  a  violation  of  the  laws 
of  the  State  where  the  wrong  is  done,  which  may  be  reme- 
died by  the  State  courts  through  a  habeas  corpus  or  other 
appropriate  writ.  That  an  act  of  Congress  is  relied  on  as  a 
justification  does  not  vary  the  case,  because  it  is  an  estab- 
lished principle  that  jurisdiction  once  acquired  extends  to 
the  determination  of  every  question  which  may  arise  in  the 
consideration  of  the  cause  under  the  statutes  of  the  same  or 
another  government.  Such  was  the  view  taken  in  Locking- 
ton's  Case,  where  Tilghman,  Ch.-J.,  observed  that  the  au- 
thority of  the  State  courts  in  cases  of  habeas  corpus  emanated 
from  the  several  States,  and  not  from  the  United  States.  In 
order  to  defeat  this  right  it  was  necessary  to  show  that  Con- 
gress not  only  possessed,  but  had  exercised,  the  power  to 
take  away  the  jurisdiction  which  those  courts  possessed  an- 
terior to  the  adoption  of  the  Constitution.  It  was  as  impor- 
tant to  the  citizen  to  be  released  from  an  unlawful  restraint 
under  color  of  an  authority  derived  from  the  United  States, 
as  from  an  illegal  restraint  imposed  in  any  other  way.  It 
might  be  doubted  whether  any  part  of  this  power  had  been 
surrendered  by  the  States;  but  if  it  had,  the  State  courts 
might  still  exercise  it  until  the  jurisdiction  of  the  federal 
judiciary  was  made  exclusive.  A  like  view  was  taken  by 
the  Supreme  Court  of  New  York  in  Charlton's  Case,  and  the 
argument  would  seem  to  be  conclusive  unless  an  answer  can 
be  found  in  the  political  considerations  which  were  relied  on 
in  Tarble's  Case.^ 

ter  of  Stacy,  10  Johnson,  328;  Charlton's  Case,  7  Cowen,  471;  Com- 
monwealth V.  Wright,.  3  Grant,  437;  Commonwealth  v.  Gane,  Id.  447; 
Commonwealth  v.  Fox,  7  Pa.  336;  Kneedler  v.  Lane,  45  Id.  238,  337. 
See  The  United  States  v.  Wyngall,  5  Hill,  16,  where  the  government  was 
so  far  from  questioning  the  jurisdiction  that  it  brought  the  question 
whether  an  alien  could  be  mustered  into  the  service  of  the  United  States 
by  a  certiorari  before  the  Supreme  Court  of  New  York,  which  refused  to 
discharge  the  recruit  because  he  had  bound  himself,  and  the  government 
might  waive  the  objection. 

1  Charlton's  Case,  7  Cowen,  471;  Wharton's  Digest,  —  title  Habeas 
Corpus.  «  13  Wallace,  397,  411. 


PERSONS  HELD  FOR  THE  UNITED  STATES?     1211 

These  decisions,  like  the  cognate  question  arising  under 
the  writ  of  replevin,  have  been  qualified  if  not  overruled ; 
and  it  is  now  so  established,  that  a  State  court  cannot  issue 
any  process  tending  to  suspend  the  execution  of  an  act  of 
Congress,  or  take  goods  or  persons  that  have  been  seized  by 
a  federal  officer  under  an  authority  from  the  General  Govern- 
ment.^ In  Tarble's  Case  a  minor  was  mustered  into  the  service 
of  the  United  States,  contrary  to  the  acts  of  Congress  for  the 
regulation  of  the  service ;  and  it  was  held  that  the  question 
whether  he  could  be  lawfully  detained  could  not  be  tested 
by  a  writ  of  habeas  corpus  from  a  State  tribunal.  The  ma- 
terial inquiry  was  said  to  be,  "  Have  the  State  courts  power 
to  discharge  persons  held  under  the  authority,  or  claim,  or 
color  of  authority  from  the  United  States,  by  an  officer 
of  that  government?"  This  question  admitted  of  but  one 
reply,  in  view  of  the  object  of  the  Constitution,  which,  as 
defined  by  Chief-Justice  Taney  in  Ableman  v.  Booth,  was 
not  only  to  guard  against  danger  from  abroad,  but  to  secure 
union  and  harmony  at  home,  by  such  a  subordination  of  the 
States  as  would  prevent  a  conffict  of  jurisdiction  that  would 
prove  fatal  to  both  governments.  The  United  States  were 
empowered  by  the  Constitution  to  raise  and  support  armies, 
and  to  provide  for  rules  for  the  government  of  the  land  and 
naval  forces ;  and  those  powers  would  be  hampered  and  ren- 
dered inefficient  if  soldiers  could  be  taken  from  the  army  of 
the  United  States,  and  perhaps  discharged,  on  a  writ  of 
habeas  corpus  by  any  judge  of  the  numerous  State  courts 
authorized  to  issue  such  writs  who  thought  the  enlistment 
invalid,  or  questioned  the  constitutionality  of  the  act  of 
Congress.^ 

^  Freeman  v.  Howe,  24  Howard,  450;  Tarble's  Case,  13  Wallace,  397; 
Covell  r.  Hayman,  111  U.  S.  178;  Patterson,  The  United  States  and 
The  States,  p.  237. 

2  "  The  Constitution  was  not  framed  merely  to  guard  the  States 
against  danger  from  abroad,  but  chiefly  to  secure  union  and  harmony  at 
home ;  and  to  accomplish  this  end  it  was  deemed  necessary,  when  the  Con- 
stitution was  framed,  that  many  of  the  rights  of  sovereignty  which  the 
States  then  possessed  should  be  ceded  to  the  General  Government;  and 
that  in  the  sphere  of  action  assigned  to  it  it  should  be  supreme,  and 
VOL.  II.  —  36 


1212  CAN  A  STATE  COURT  LIBERATE 

The  principle,  as  the  judgment  in  Tarble's  Case  indicates, 
is  affected  by  considerations  which  are  not  always  the  same, 

strong  enough  to  execute  its  own  laws  by  its  own  tribunals,  without 
interruption  from  a  State  or  from  State  authorities.  And  the  judicial 
power  conferred  extends  to  all  cases  arising  under  the  Constitution,  and 
thus  embraces  every  legislative  act  of  Congress,  whether  passed  in  pur- 
suance of  it  or  in  disregard  of  its  provisions.  The  Constitution  is  under 
the  view  of  the  tribunals  of  the  United  States  when  any  act  of  Con- 
gress is  brought  before  them  for  consideration."  Ableman  v.  Booth,  21 
Howard,  506. 

"  Such  being  the  distinct  and  independent  character  of  the  two  gov- 
ernments, within  their  respective  spheres  of  action,  it  follows  that  neither 
can  intrude  with  its  judicial  process  into  the  domain  of  the  other,  except 
so  far  as  such  intrusion  may  be  necessary  on  the  part  of  the  national 
government  to  preserve  its  rightful  supremacy  in  cases  of  conflict  of  au- 
thority. In  their  laws  and  mode  of  enforcement  neither  is  responsible 
to  the  other.  How  their  respective  laws  shall  be  enacted ;  how  they  shall 
be  carried  into  execution,  and  in  what  tribunals,  or  by  what  officers ;  and 
how  much  discretion,  or  whether  any  at  all  shall  be  vested  in  their  offi- 
cers, are  matters  subject  to  their  own  control,  and  in  the  regulation  of 
which  neither  can  interfere  with  the  other. 

*'  Now,  among  the  powers  assigned  to  the  national  government  is  the 
power  '  to  raise  and  support  armies,'  and  the  power  '  to  provide  for  the 
government  and  regulation  of  the  land  and  naval  forces.'  The  execution 
of  these  powers  falls  within  the  line  of  its  duties,  and  its  control  over  the 
subject  is  plenary  and  exclusive.  It  can  determine,  without  question 
from  any  State  authority,  how  the  armies  shall  be  raised,  whether  by 
voluntary  enlistment  or  forced  draft,  the  age  at  which  the  soldier  shall 
be  received,  and  the  period  for  which  he  shall  be  taken,  the  compensa- 
tion he  shall  be  allowed,  and  the  service  to  which  he  shall  be  assigned. 
And  it  can  provide  the  rules  for  the  government  and  regulation  of  the 
forces  after  they  are  raised,  define  what  shall  constitute  military  offences, 
and  prescribe  their  punishment.  No  interference  with  the  execution  of 
this  power  of  the  national  government  in  the  formation,  organization, 
and  government  of  its  armies  by  any  State  officials  could  be  permitted 
without  greatly  impairing  the  efficiency  of,  if  it  did  not  utterly  destroy,  this 
branch  of  the  public  service.  Probably  in  every  county  and  city  in  the 
several  States  there  are  one  or  more  officers  authorized  by  law  to  issue 
writs  of  habeas  corpus  on  behalf  of  persons  alleged  to  be  illegally  re- 
strained of  their  liberty ;  and  if  soldiers  could  be  taken  from  the  army  of 
the  United  States,  and  the  validity  of  their  enlistment  inquired  into  by 
any  one  of  these  officers,  such  proceeding  could  be  taken  by  all  of  them, 
and  no  movement  could  be  made  by  the  national  troops  without  their 
commanders  being  subjected  to  constant  annoyance  and  embarrassment 


PERSONS   HELD   FOB  THE  UNITED   STATES?         1213 


and  cannot  readily  be  stated.  Seen  in  one  aspect,  it  is  a 
rule  of  policy  intended  to  secure  the  government  of  the 

from  this  source.  The  experience  of  the  late  Rebellion  has  shown  us  that 
in  times  of  great  popular  excitement  there  may  be  found  in  every  State 
large  numbers  ready  and  anxious  to  embarrass  the  operations  of  the  gov- 
ernment, and  easily  persuaded  to  believe  every  step  taken  for  the  enforce- 
ment of  its  authority  illegal  and  void.  Power  to  issue  writs  of  habeas 
corpus  for  the  discharge  of  soldiers  in  the  military  service,  in  the  hands 
of  parties  thus  disposed,  might  be  used,  and  often  would  be  used,  to  the 
great  detriment  of  the  public  service.  In  many  exigencies  the  measures 
of  the  national  government  might  in  this  way  be  entirely  bereft  of  their 
efl&cacy  and  value.  An  appeal  in  such  cases  to  this  court,  to  correct  the 
erroneous  action  of  these  officers,  would  afford  no  adequate  remedy. 
Proceedings  on  habeas  corpus  are  summary,  and  the  delay  incident  to 
bringing  the  decision  of  a  State  officer,  through  the  highest  tribunal  of 
the  State,  to  this  court  for  review  would  necessarily  occupy  years,  and  in 
the  meantime,  where  the  soldier  was  discharged,  the  mischief  would  be 
accomplished.  It  is  manifest  that  the  powers  of  the  national  government 
could  not  be  exercised  with  energy  and  efficiency  at  all  times  if  its  acts 
could  be  interfered  with  and  controlled  for  any  period  by  officers  or  tri- 
bunals of  another  sovereignty.  It  is  true  similar  embarrassment  might 
sometimes  be  occasioned,  though  in  a  less  degree,  by  the  exercise  of  the 
authority  to  issue  the  writ  possessed  by  judicial  officers  of  the  United 
States,  but  the  ability  to  provide  a  speedy  remedy  for  any  inconven- 
ience following  from  this  source  would  always  exist  with  the  national 
legislature. 

"  State  judges  and  State  courts,  authorized  by  laws  of  their  States  to 
issue  the  writ  of  habeas  corpus^  have  undoubtedly  a  right  to  issue  the  writ 
In  any  case  where  a  party  is  alleged  to  be  illegally  confined  within  their 
limits,  unless  it  appear  upon  his  application  that  he  is  confined  under  the 
authority,  or  claim  and  color  of  the  authority,  of  the  United  States  by  an 
officer  of  that  government.  If  such  fact  appear  upon  the  application  the 
writ  should  be  refused.  If  it  do  not  appear,  the  judge  or  court  issuing 
the  writ  has  a  right  to  inquire  into  the  cause  of  imprisonment,  and  ascer- 
tain by  what  authority  the  person  is  held  within  the  limits  of  the  State; 
and  it  is  the  duty  of  the  marshal,  or  other  officer  having  the  custody  of 
the  prisoner,  to  give,  by  a  proper  return,  information  in  this  respect. 
His  return  should  be  sufficient,  in  its  detail  of  facts,  to  show  distinctly 
that  the  imprisonment  is  under  the  authority,  or  claim  and  color  of  the 
authority,  of  the  United  States,  and  to  exclude  the  suspicion  of  imposi- 
tion or  oppression  on  his  part.  And  the  process  or  orders  under  which 
the  prisoner  is  held  should  be  produced  with  the  return  and  submitted  to 
inspection,  in  order  that  the  court  or  judge  issuing  the  writ  may  see  that 
the  prisoner  is  held  by  the  officer  in  good  faith,  under  the  authority,  or 


1214  CAN   A   STATE  COURT  LIBERATE 

United  States  from  being  controlled  or  fettered  by  the 
State  courts  through  its  officers  or  agents.  So  regarded,  it 
is  a  restraint  only  on  these  courts,  and  is  not  ordinarily  ap- 
plicable to  the  federal  tribunals.  In  another  aspect,  it  is  a 
rule  common  to  all  courts  that  things  which  are  held  under 
judicial  process,  or  with  a  view  to  a  decision  in  due  course 
of  law,  shall  not  be  levied  on,  or  taken  under  a  writ  from  any 
tribunal  save  that  to  which  the  decision  of  the  controversy 
properly  belongs,  and  applies  whether  the  power  relied  on 
as  a  justification  could  or  could  not  constitutionally  be  con- 
ferred, or  although  it  was  not  rightfully  exercised.  It  should 
not  be  so  applied  as  to  cover  any  act  which  is  necessarily 
beyond  the  scope  of  the  power.  A  return  to  a  habeas  corpus 
from  a  State  court  that  the  person  on  whose  behalf  the  writ 
was  issued  was  drafted  under  an  act  of  Congress,  and  is  held 
to  answer  a  charge  of  desertion,  or  for  failing  to  appear  at 
the  rendezvous,  is  conclusive,  although  the  judge  who  hears 
the  case  regards  the  act  as  unconstitutional,  or  it  is  proved 
undeniably  that  the  prisoner  had  passed  the  age  prescribed 
by  Congress  and  was  exempt  from  the  draft ;  but  a  like  re- 
turn to  a  habeas  corpus  issued  for  a  woman  would  be  nuga- 
tory, and  might  be  disregarded  by  a  State  or  federal  court. 
Such  also,  as  we  have  seen,  is  the  rule  when  an  authority  to 
seize  the  vessel  is  pleaded  by  a  collector  of  the  customs  as  a 
defence  to  an  action  of  replevin  for  the  cargo.^ 

The  course  adopted  by  the  Supreme  Court  of  Wisconsin 
in  Ableman  v.  Booth  ^  shows  that  the  argument  ah  incon- 
venienti,  so  much  relied  on  in  Tarble's  Case,  was  not  wholly 
without  foundation ;  and  a  like  remark  applies  to  Kneedler 
V.  Lane,3  where  the  jurisdiction  of  a  State  court  was  invoked 
for  a  purpose  which,  if  successful,  would  have  seriously  im- 
peded the  operations  of  the  government  for  the  suppression 
of  the  Rebellion.     In  this  instance  an  injunction  was  prayed 

claim  and  color  of  the  authority,  of  the  United  States,  and  not  under  the 
mere  pretence  of  having  such  authority."  Tarble's  Case,  13  Wallace, 
397,  411. 

1  See  ante,  p.  1194.  ^  21  Howard,  506;  ante,  p.  1202. 

8  45  Penn.  238. 


PERSONS  HELD  FOR  THE  UNITED   STATES?  1215 

for  to  prevent  the  draft  which  Congress  had  ordered  as  a 
means  of  filling  the  ranks  which  were  thinned  by  the  war. 
The  ground  taken  was  that  the  act  was  not  a  necessary  and 
proper  means  of  executing  the  power  "  to  raise  and  support 
armies,"  and  moreover  tended  to  deprive  the  States  of  their 
militia,  by  forcing  the  entire  able-bodied  population  into  the 
military  service  of  the  United  States.  As  often  happens  in 
such  cases,  the  court  was  divided  into  two  nearly  equal 
camps.  Each  side  adhered  to  the  doctrines  which  they  had 
imbibed  in  earlier  life,  and  the  preliminary  injunction  which 
had  been  granted  would  have  been  continued  but  for  the 
casting  vote  of  Judge  Strong,  who  took  the  broad  view  of  the 
Constitution  which  may  be  adopted  by  men  of  all  shades  of 
political  opinion.  Agreeably  to  the  judgment  of  the  majority 
of  the  court,  as  given  by  Reed,  J.,  a  State  tribunal  cannot 
restrain  an  ojficer  of  the  United  States  from  performing  a 
duty  imposed  upon  him  by  Congress.  The  State  government 
and  the  government  of  the  United  States  are  distinct,  each 
having  different  functions  ;  and  if  the  federal  courts  may 
prevent  encroachment  on  part  of  the  States,  it  is  because  the 
Constitution  is  paramount  and  confers  the  requisite  authority 
for  that  end.  The  principle  had  been  laid  down  in  Ableman 
V.  Booth,  and  applied  wherever  an  attempt  was  made  to  con- 
trol the  exercise  of  an  authority  conferred  by  the  General 
Government.  It  was  contended,  on  the  other  hand,  that 
there  was  nothing  in  the  Constitution  to  preclude  the  State 
courts  from  staying  the  execution  of  an  act  which  transcends 
the  authority  of  the  General  Government.  The  language  held 
in  Ableman  v.  Booth  should,  like  other  dicta^  be  taken  in  con- 
nection with  the  facts.  All  that  the  decision  really  estab- 
lished was  that  when  the  juja^iction  of  a  federal  court 
attaches  it  will,  like  that  ^^very  competent  tribunal,  be 
exclusive.  If  a  State  court  cannot  set  aside  or  control  the 
process  or  judgments  of  the  federal  courts,  it  is  equally  true 
that  the  federal  courts  have,  as  was  decided  in  Taylor  v. 
Carryl,^  ordinarily  no  such  power  over  the  process  or  judg- 

1  20  Howard,  553. 


1216  CAN  A  STATE  COURT  LIBERATE 

ment  of  a  State  court.  As  between  co-ordinate  tribunals, 
each  is  bound  to  respect  the  acts  and  proceedings  of  the 
other.  But  this  rule  does  not  apply  when  the  act  complained 
of  is  done,  not  in  the  legitimate  exercise  of  judicial  power, 
but  ministerially,  in  pursuance  of  a  command  which  is  not 
warranted  by  the  Constitution.  The  defendants  were  not 
acting  under  any  judicial  process  from  the  United  States. 
They  were  ministerial  officers  engaged  in  executing  an  act 
of  Congress ;  and  if  the  act  was  unconstitutional,  they  had 
no  legal  sanction  for  their  proceedings.  It  had  been  repeat- 
edly held  that  the  State  courts  might,  under  these  circum- 
stances, afford  redress  or  protection  to  the  citizen  through  a 
habeas  corpus.  This  jurisdiction  had  been  exercised  in  New 
York,  Massachusetts,  Maryland,  New  Jersey,  and  New  Hamp- 
shire ;  and  in  The  Commonwealth  v.  Fox  a  recruit  was  dis- 
charged from  the  military  custody  of  the  United  States, 
although  the  return  to  the  habeas  corpus  issued  in  his  behalf 
alleged  that  he  was  held  as  a  deserter.  It  was  established 
by  these  instances  that  the  State  courts  have  concurrent 
jurisdiction  with  the  courts  of  the  United  States  in  all  cases 
of  illegal  confinement  under  color  of  an  unconstitutional  law 
or  command,  where  the  act  complained  of  is  not  done  in  the 
course  of  a  suit  or  prosecution  duly  instituted  in  the  federal 
tribunals. 

The  question  would  seem  to  be  political  rather  than  judi- 
cial, and  should,  perhaps,  have  been  left  to  Congress,  who 
might,  instead  of  taking  away  the  jurisdiction  which  the 
local  courts  had  so  long  exercised,  have  attained  the  end 
by  rendering  such  cases  removable  to  the  circuit  courts 
of  the  United  States.  Such  a  course  would  have  guarded 
against  the  dangers  incident  to  the  incompetency  or  preju' 
dices  of  the  State  tribunals,  —  which,  though  vividly  por- 
trayed in  Tarble's  Case,  were  rather  anticipated  than  felt,  — 
and  yet  have  left  them  free  to  intervene  for  the  protection  of 
the  citizen. 

Had  the  judgment  in  Tarble's  Case  been  confined  to  the 
point  actually  before  the  court,  —  that  a  man  who  has  been 
mustered  into  the  service  of  the  United  States  cannot  be 


PERSONS   HELD   FOR  THE  UNITED   STATES?         1217 

released  by  a  State  tribunal,  —  it  might  have  been  regarded 
as  within  the  line  drawn  in  Slocum  v.  Mayberry ;  ^  but  in  de- 
claring that  a  pretence  or  color  of  federal  authority  will  pre- 
clude the  State  courts  from  issuing  a  replevin  or  habeas 
corpus,  it  went  further  than  the  exigency  required,  and  may 
be  thought  to  have  overstepped  the  line  which  separates  the 
judicial  province  from  the  legislative.  Where  the  Constitu- 
tion does  not  prescribe  the  rule  it  is  for  Congress,  and  not 
for  the  national  tribunals,  to  say  whether  their  jurisdiction 
shall  be  concurrent  or  exclusive ;  and  as  Congress  may  limit, 
but  cannot  enlarge,  the  powers  of  the  State  courts,  the  Su- 
preme Court  should  be  slow  to  impose  restraints  which  cannot 
be  removed  by  Congress.  It  has  been  justly  said  that  while 
legislative  mistakes  can  be  corrected,  and  not  unfrequently 
indicate  the  true  path  to  future  law-makers,  the  errors  of 
judges  are  precedents  which  bind  their  successors.  This 
remark  applies  with  more  than  ordinary  force  in  the  United 
States,  where  an  erroneous  interpretation  of  the  Constitution 
is  conclusive  on  the  legislature.  Such  was  the  Dred  Scott 
Case,  which  precipitated  the  Civil  War  by  circumscribing 
the  power  of  Congress,  and  precluding  an  amicable  adjust- 
ment of  the  controversy  save  through  an  amendment  of  the 
Constitution  that  was  impracticable  under  the  circumstances. 
Whatever  the  rule  may  be  when  the  question  is  one  of 
custody  or  possession,  and  not  of  right,  there  can  be  no  doubt 
as  to  the  power  and  duty  of  the  State  courts  to  give  compen- 
sation in  damages  for  an  excess  or  abuse  of  power  on  the 
part  of  a  federal  officer.  Prima  facie  every  invasion  of  the 
right  of  property,  or  of  personal  freedom,  is  an  infringement 
of  the  laws  of  the  State,  and  he  who  maintains  the  contrary 
must  show  a  sufficient  justification.  Unless  the  injured  party 
could  sue  in  the  State  courts,  there  might  be  a  failure  of  jus- 
tice, because  the  courts  of  the  United  States  have  no  common- 
law  or  general  jurisdiction.  It  does  not  necessarily  vary  the 
case  that  a  decree  or  writ  of  a  federal  court  is  relied  on  as  a 
justification.     It  may  still  be  a  question  whether  the  federal 

1  2  Wheaton,  1.    See  ante,  p.  1194. 


1218 

court  had  jurisdiction  of  the  cause  and  the  parties,  or  whether 
the  act  complained  of  was  authorized  by  the  writ.  If,  for 
instance,  the  marshal  arrests  one  man  on  a  warrant  issued 
against  another,  or  takes  the  goods  of  A  on  a  fieri  facias 
against  B,  the  injured  party  may  bring  trespass  in  a  State 
court  against  the  officer,  and  obtain  compensation  in  dam- 
ages,^ although  he  cannot  maintain  a  replevin,  habeas  corpus^ 
or  other  proceeding  which  will  disturb  a  possession  that  is 
virtually  held  by  the  court  which  issued  the  writ.^ 

The  line  of  demarcation  was  drawn  in  Buck  v.  Colbath.^ 
Agreeably  to  the  judgment,  what  Freeman  v.  Howe  estab- 
lishes is  that  persons  or  property  held  under  process  from  a 
federal  court  are  virtually  in  custodia  legis,  and  cannot  be  taken 
from  its  officers  by  virtue  of  a  writ  issued  by  a  State  court  or 
other  co-ordinate  tribunal.  Trover  and  trespass  are  not  within 
this  principle,  because  they  do  not  disturb  the  possession 
which  has  been  acquired  under  the  levy  or  attachment,  and 
simply  raise  the  question  whether  the  writ  is  a  justification. 
Judicial  writs  may  be  classified  as  follows :  those  which  desig- 
nate some  specific  thing  or  person,  and  those  which  simply 
command  the  sheriff  or  marshal  to  make  a  sum  certain  out  of 
the  defendant's  property.  In  the  first  class  the  officer  has  no 
discretion,  but  must  do  as  he  is  commanded ;  and  hence,  if 
the  court  had  jurisdiction  to  issue  the  writ  it  will  be  a  good 
defence  in  every  other.  In  the  second  class  the  officer  must 
determine  for  himself  whether  the  property  in  question  does 
or  does  not  belong  to  the  defendant,  and  is  liable  to  be  taken 
in  execution ;  and  the  writ  will  not  protect  him  against  the 
consequences  of  an  erroneous  exercise  of  his  judgment  in  a 
suit  brought  in  any  court  of  competent  jurisdiction.  Replevin 
and  foreign  attachment  belong  to  the  former  category ;  a 
fieri  facias,  or  levari  facias,  to  the  latter.  It  is  not,  therefore, 
a  good  defence  to  an  action  of  trespass  de  bonis  asportatis  in 
a  State  or  federal  court  against  the  marshal,  that  he  levied 
under  a  writ  from  the  Circuit  Court,  unless  it  also  appears, 

1  Buck  V.  Colbath,  3  Wallace,  334;  Day  v.  Gallup,  2  Id.  97. 

2  Freeman  v.  Howe,  24  Howard,  450. 
8  3  Wallace,  334,  343. 


AND  WRITS   IN  PERSONAM.  1219 

or  is  proved,  that  the  goods  belonged  to  the  defendant  in 
the  execution,  or  that  they  do  not  belong  to  the  party  who 
demands  compensation. 

The  above  classification  seems  to  be  inaccurate,  although 
the  principles  on  which  it  proceeds  are  sound.  A  libel  in 
the  admiralty,  or  other  proceeding  strictly  in  rem^  is  a  justi- 
fication as  against  all  the  world ;  and  the  ofl&cer  may  take 
the  vessel  into  his  custody  without  inquiring  to  whom  it 
belongs,  and  although  the  party  who  contracted  the  debt  or 
incurred  the  obligation  is  not  the  owner.^  But  the  mandate 
of  a  writ  of  foreign  attachment  is  not  that  the  sheriff  shall 
seize  specific  ^oods,  but  such  goods  in  the  possession  of  the 
garnishee  as  belong  to  the  defendant  in  the  attachment,  and 
if  the  officer  exceeds  his  authority  by  taking  the  goods  of  a 
third  person,  he  is  as  much  a  trespasser  as  if  he  had  levied 
on  the  property  of  A  under  a  fie7'i  facias  issued  against  B.^ 
The  effect  of  a  writ  of  replevin  is  more  doubtful ;  but  as  the 
judgment  simply  determines  the  right  of  property  between 
the  parties,  it  would  seem  that  the  sheriff  is  not  justified  in 
taking  goods  of  a  third  person,  although  designated  in  the 
writ  and  found  in  the  defendant's  possession.  The  point  is 
one  about  which  the  American  authorities  differ;  and  but 
little  light  can  be  derived  from  England,  where  replevin  is 
only  used  as  a  means  of  regaining  the  possession  of  goods 
that  have  been  distrained,  and  the  question  is,  therefore,  or- 
dinarily, not  as  to  ownership,  but  whether  they  were  on  the 
demised  premises,  and  was  the  rent  in  arrear  ?  ^ 

The  act  of  1793  forbade  the  courts  of  the  United  States  to 
enjoin  proceedings  in  the  courts  of  the  several  States ;  *  and 
except  where  such  a  writ  is  issued  in  bankruptcy,  the  rule  is 

^  Magee  u.  Beirne,  39  Pa.  50 ;  Flanagan  u.  Mechanics'  Bank,  54  Id.  398. 
2  See  ante,  p.  1018;  Taylor  y.  Carryl,  20  Howard,  583,  617;  Woodruff 
V.  Taylor,  20  Vt.  65;  Smith's  Lead.  Cas.  (8  Am.  ed.),  911,  966,  973. 

*  See  Server  v.  McGowen,  13  Wend.  286 ;  Shipman  v.  Clark,  4  Denio, 
.446;  Foster  v.    Pettibone,    20  Barb.    350;   Sifford   v.    Beaty,    12  Ohio 

(n.  8.)  188;  Shipman  v.  Clark,  4  Denio,  446;  2  Smith's  Lead.  Cas.  (8  Am. 
ed.),  968. 

*  Ex  parte  Dorr,  3  Howard,  13;  Taylor  v.  Carryl,  20  Id.  596;  Watson 
V.  Jones,  13  Wallace, -679;  Leroux  v.  Hudson,  109  U.  S.  468. 


1220  A  STATE  COTJRT  CANNOT  ENJOIN 

the  same  under  the  Revised  Statutes.^  This  is  simply  an 
application  of  the  principle  that  the  tribunal  which  first  ob- 
tains jurisdiction  shall  retain  it  to  the  end,  which,  though 
meeting  with  a  seeming  exception  while  law  and  equity  were 
administered  by  different  tribunals,  should  be  universal  where 
both  powers  are  lodged  in  the  same  hand ;  and  a  judge  sit- 
ting as  a  chancellor  may  make  a  decree  that  will  preclude 
him  from  taking  the  course  which  he  would  otherwise  be 
bound  to  follow  when  sitting  at  common  law.^  The  prin- 
ciple is  irrespective  of  the  relation  of  the  State  and  federal 
tribunals,  and  applies  as  between  courts  deriving  their  au- 
thority from  the  same  government. 

It  has  at  the  same  time  been  decided  that  there  is  an  im- 
plied exception  where  an  act  of  Congress  cannot  be  carried 
into  effect  without  bringing  all  the  parties  before  the  same 
tribunal.  Such  is  the  rule  under  the  statute  limiting  the  lia- 
bility of  owners  for  the  torts  of  the  vessel ;  ^  and  it  was  held 
in  The  Providence  Insurance  Co.  v.  The  Hill  Manufacturing 
Co.  that  the  persons  who  had  proceeded  in  the  State  courts 
to  recover  damages  for  a  collision  might  be  compelled  by  a 
monition  from  the  admiralty  to  desist  and  present  their  claim 
before  that  tribunal. 

It  is  immaterial  that  the  admiralty  does  not  take  cogni- 
zance of  the  cause  until  after  the  institution  of  the  proceed- 
ings at  common  law,  because  its  jurisdiction  becomes  exclu- 
sive as  soon  as  application  is  made  to  it  for  redress ;  and  if 
the  State  court  proceeds,  the  judgment  may  be  reversed.* 

It  has  also  been  said  that  when  a  State  court  proceeds 
after  a  petition  for  removal  has  been  filed,  security  given, 
and  a  transcript  of  the  record  taken  to  the  Circuit  Court,  the 
latter  may  issue  an  injunction  ;  but  the  rule  now  is  that  both 
tribunals  are  equally  entitled  to  form  an  opinion  as  to  the 
sufficiency  of  the  petition,  and  may  each  go  on  to  judgment, 

1  See  Haines  v.  Carpenter,  91  U.  S.  254;  Dial  v.  Reynolds,  96  Id.  341. 

2  See  Peck  v.  Jenness,  7  Howard,  612. 

3  The  Providence  Steamship  Co.  v.  Hill  Manufacturing  Co. ,  109  U.  S. 
578.     See  ante,  p.  1018. 

*  Providence  Steamship  Co.  v.  Hill  Manufacturing  Co.,  109  U.  S.  578. 


PEOCEEDINGS  IN  A  FEDERAL  COURT. 


1221 


and  it  will  then  be  for  the  Supreme  Court  of  the  United 
States  to  say  which  has  erred.^  As  was  observed  in  The 
Chesapeake  &  Ohio  R.  R.  Co.  v.  White :  ^  *'  If  a  sufficient 
case  for  removal  was  made  in  the  Circuit  Court,  the  rightful 
jurisdiction  of  that  court  is  gone,  and  it  cannot  properly  pro- 
ceed further;  but  if  it  does  proceed,  and  does  force  the  de- 
fendant who  applied  for  the  removal  to  a  trial,  the  remedy 
is  by  a  writ  of  error  after  final  judgment,  and  not  by  prohi- 
bition or  punishment  for  contempt."  '•  The  proper  practice  in 
such  cases  was  fully  considered  in  The  Insurance  Co.  v,  Dun- 
ham ,3  The  Removal  Cases,*  The  Railroad  Co.  v.  Mississippi,^ 
and  The  Railroad  Co.  v.  Koontz.^  The  courts  of  the  United 
States  may  in  the  exercise  of  the  jurisdiction  conferred  by 
the  Bankrupt  Act  enjoin  proceedings  in  the  State  courts 
which  would  impair  the  right  or  title  of  the  assignee,  or  in- 
terfere with  the  effectual  distribution  of  the  estate  among  the 
creditors ; "  but  the  power  will  not  be  so  exercised  as  to  pre- 
clude the  State  tribunals  from  enforcing  mortgages,  judg- 
ments, or  other  liens  that  have  previously  attached  or  become 
binding  on  the  real  or  personal  estate  of  the  bankrupt."  ^ 

The  State  tribunals  are  withheld  by  comity  and  the  prin- 
ciples above  referred  to  from  issuing  an  injunction  against 
proceedings  in  the  federal  courts,^  and  should  be  equally  con- 
siderate in  dealing  with  each  other.  Such  reticence  is  the 
more  proper  because  the  end  may  generally  be  attained  by 
filing  a  bill  in  the  Circuit  Court  for  the  proper  district.^^ 

1  Chesapeake  &  Ohio  R.  R.  Co.  v.  White,  111  U.  S.  134;  Railroad  Co. 
V.  Mississippi,  102  Id.  135;  Railroad  Co.  v.  Koontz,  104  Id.  5;  Kanouse 
V.  Martin,  15  Howard,  198 ;  Kern  v.  Huidekoper,  103  U.  S.  485. 

2  111  U.  S.  134,  137. 

«  11  Wallace,  1.  *  100  U.  S.  467. 

6  102  U.  S.  135.  «  104  U.  S.  5. 

"  See  Ex  parte  Christy,  3  Howard,  292;  Ex  parte  Foster,  2  Story,  131; 
Ex  parte  Eames,  Id.  322. 

8  Peck  V.  Jenness,  7  Howard,  612. 

*  McKim  V.  Voorhees,  7  Cranch,  279. 

^^  English  V.  Miller,  Richardson's  Equity,  320;  Riggs  v.  Johnson 
County,  6  Wallace,  166  ;  The  United  States  v.  Keokuk,  Id.  514  ;  Weber 
V.  Lee  County,  Id.  210 ;  Kendell  v.  Winsor,  6  R.  I.  453 ;  Duncan  v.  Darst, 
1  Howard,  306. 


1222  INJUNCTION  FEOM  FEDERAL 

The  principle,  as  we  have  seen,  is  that  a  cause  shall  not 
be  taken  out  of  the  hands  of  the  court  which  has  it  in  charge 
by  the  uncalled-for  intervention  of  another  tribunal ;  and 
hence,  when  a  party  who  has  been  served  with  process,  and 
is  subject  to  the  jurisdiction  of  a  court,  attempts  to  violate  the 
principle  by  instituting  a  proceeding  which  covers  the  same 
ground,  he  may  be  restrained  from  taking  a  step  which  tends 
to  prolong  litigation  and  increase  costs.  The  restriction  laid 
on  the  federal  courts  by  the  act  of  1789  and  the  Revised  Stat- 
utes is,  accordingly,  limited  to  suits  begun  in  the  State  courts 
before  proceedings  are  instituted  in  the  federal  courts,  and 
does  not  apply  when  the  proceedings  of  the  federal  courts 
are  first  in  date.^  When,  therefore,  the  plaintiff  obtains  a 
judgment  in  a  State  court  notwithstanding  the  removal  of 
the  cause  to  a  circuit  court,  and  attempts  to  enforce  the 
judgment  by  a  suit  in  the  same  or  another  tribunal,  the  pro- 
ceeding may  be  enjoined  by  the  federal  court.^  If  the  action 
is  replevin,  and  the  defendant,  after  having  erroneously  ob- 
tained judgment  in  the  State  court,  proceeds  on  the  replevin 
bond,  he  may  be  restrained  by  an  injunction  from  the  Cir- 
cuit Court.2  Such  a  course  does  not  necessarily  bring  the  rival 
tribunals  into  collision,  because  the  writ  is  addressed  to  the 
party  and  not  to  the  judges ;  but  it  should  not  be  adopted 
unless  the  exigency  requires  it,  and  the  error  may  generally 
be  corrected  by  pleading  the  prior  suit  in  bar  or  abatement. 

In  like  manner  the  State  courts  may,  for  the  purpose  of 
protecting  their  jurisdiction  when  it  was  the  first  in  time, 
enjoin  the  parties  to  the  cause  from  instituting  a  new  pro- 
ceeding concerning  the  same  subject  in  a  federal  court.*  It 
is  immaterial  in  this  regard  that  the  new  suit  is  instituted  in 
another  State,  if  the  party  is  within  the  jurisdiction  of  the 
court,  and  subject  to  its  process.^    In  The  Home  Insurance 

1  Fisk  V.  Pacific  R.  R.  Co.,  10  Blatchford,  518. 

2  French  v.  Hay,  22  Wallace,  250.     See  ante,  p.  1092. 
8  Dietzsch  v.  Huidekoper,  103  U.  S.  494. 

*  Ackerly  v.  Vilas,  15  Wis.  401  ;  Home  Insurance  v.  Howell,  9  C.  E. 
Green,  2-38  ;  High  on  Injunctions,  section  111. 

5  Home  Insurance  Co.  v.  Howell,  2  Lead.  Cas.  in  Equity  (4  Am. 
ed.),  1404. 


TO  STATE  TRIBUNAL. 


1223 


Co.  V.  Howell,  a  bill  was  filed  in  New  Jerse}^  for  the  cancel- 
lation of  two  policies  of  insurance  on  the  defendant's  real 
estate  in  Illinois,  as  having  been  obtained  by  fraud,  and  that 
he  might  be  enjoined  from  enforcing  them  by  suit.  The  de- 
fendant alleged  in  his  answer  that  he  was  a  citizen  of  Illinois, 
and  subsequently  brought  a  suit  on  the  policies  in  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  that 
State.  The  prosecution  of  this  suit  was  enjoined  by  the  New 
Jersey  Court.     The  chancellor  said :  — 

*'  This  court,  having  the  power  to  hear  and  determine  the  subject- 
matter  in  controversy,  is  fully  at  liberty  to  retain  it  until  it  shall 
have  disposed  of  it.  The  general  rule  is  that  as  between  courts  of 
concurrent  and  co-ordinate  jurisdiction  (and  the  Circuit  Court  of 
the  United  States  and  the  State  courts  are  such  in  certain  contro- 
versies —  such  as  that  involved  in  this  suit,  for  example  —  between 
citizens  of  different  States) ,  the  court  that  first  obtained  possession 
of  the  controversy  must  be  allowed  to  dispose  of  it  without  inter- 
ference from  the  co-ordinate  court.^  Nor  does  it  matter  that  the 
policies  of  insurance  were  issued  in  another  State  upon  property  in 
that  State,  and  that  the  loss  occurred  there. 

"  Where  a  party  is  within  the  jurisdiction  of  this  court,  so  that 
on  a  bill  properl}"  filed  here  this  court  has  jurisdiction  of  his  person, 
although  the  subject-matter  of  the  suit  may  be  situated  elsewhere, 
it  may,  by  the  ordinary  process  of  injunction  and  attachment  for 
contempt,  compel  him  to  desist  from  commencing  a  suit  at  law, 
either  in  this  State  or  any  foreign  jurisdiction,  and  of  course,  from 
prosecuting  one  commenced  after  the  bringing  of  the  suit  in  this 
court."  2 

In  Akerly  v.  Vilas,-^  an  action  was  brought  in  a  State  court  in 
Wisconsin  to  foreclose  a  mortgage  given  to  secure  the  bonds  of 
the  mortgagor,  and  also  for  a  personal  judgment  against  him ; 
and  the  defendant  filed  an  answer  setting  up  a  partial  failure 
of  consideration.  The  plaintiff,  who  was  a  citizen  of  another 
State,  then  commenced  an  action  upon  the  bonds  against  the 
mortgagor  in  the  United  States  Court  for  the  District  of  Wis-, 

1  Riggs  V.  Johnson  County,  6  Wallace,  166,  196. 

2  Mead  v.  Merritt,  2  Paige,  402.     See  22  Wallace,  250. 
«  15  Wis.  401. 


1224  INJUNCTION  FEOM  STATE 

consin.  The  object  of  this  change  of  forum  was  to  evade  the 
equitable  defence  which  had  been  made  in  the  State  court ; 
and  it  was  frustrated  by  an  injunction  from  that  tribunal.^ 

^  **  The  general  power  of  courts  of  equity,  whose  jurisdiction  has  once 
attached,  to  restrain  parties  from  commencing  and  prosecuting  subse- 
quent actions  in  other  courts  for  the  same  object,  is  unquestioned.  If 
any  doubt  should  exist  it  will  be  effectually  dispelled  by  an  examination 
of  the  cases  cited  by  the  counsel  for  the  defendant.  The  defendant  will 
be  restrained  at  the  instance  of  the  plaintiff,  and  vice  versa.  The  forum 
of  jurisdiction  in  which  the  subsequent  proceedings  are  taken,  whether 
domestic  or  foreign,  is  immaterial.  The  injunction  goes  against  the 
party,  and  not  the  court  or  officer.  ITie  doctrine  of  the  English  courts  is 
well  settled,  and  we  are  unable  to  find  any  American  decision  to  the  con- 
trary. The  sole  inquiry  is  whether  the  ends  of  justice  demand  that  the 
power  should  be  exercised.  If  they  do,  the  court  first  acquiring  jurisdic- 
tion will  retain  the  suit  for  a  final  determination  of  the  rights  of  the  par- 
ties, and  restrain  them  from  suing  or  proceeding  elsewhere. 

"  The  only  question  here  is  whether  there  is  anything  in  the  relations 
of  the  State  and  federal  courts  which  should  prevent  the  application  of 
this  general  doctrine  to  a  case  like  the  present.  The  plaintiff's  counsel 
insist  that  there  is;  that  it  will  lead  to  troublesome  and  unnecessary  con- 
flicts, promote  litigation,  and  violate  the  rules  of  comity  and  forbearance 
which  should  be  maintained  between  the  two  jurisdictions.  We  think 
differently.  It  seems  to  us  that  no  question  of  conflict  of  jurisdiction  is 
involved.  This  is  implied  from  the  nature  of  the  power  exercised.  No 
attempt  to  control  or  regulate  the  action  of  the  federal  court  or  its  officers 
is  made.  The  process  is  directed  to  the  parties  litigating  before  the  court 
from  which  it  issues ;  and  it  becomes  a  mere  question  of  the  power  of  that 
court  to  regulate  and  control  their  conduct  in  regard  to  the  subject  of 
such  litigation. 

"  The  argument  drawn  from  the  rules  of  comity  would  seem  to  be 
more  appropriately  urged  in  the  District  Court  than  here.  It  is  the  es- 
tablished and,  we  think,  correct  doctrine  of  the  federal  courts,  as  to  all 
cases  where  the  jurisdiction  of  the  two  judicial  systems  is  concurrent  and 
no  appeal  is  given,  that  priority  of  suit  determines  the  right.  Proceed- 
ings in  the  action  first  commenced  cannot  be  arrested  or  affected  by  those 
subsequently  taken  in  another  court.  Wallace  v.  McConnell,  13  Peters, 
136.  The  plaintiff  having  voluntarily  submitted  the  whole  controversy 
to  the  courts  of  the  State  cannot  complain  of  the  rules  of  law  by  which 
their  action  is  governed,  or  that  he  is  held  to  abide  their  determination ; 
and  the  rules  of  comity,  if  they  can  be  said  to  have  any  application,  would 
seem  to  require  that  the  junior  action  should  be  dismissed  from  the  Dis- 
trict Court.     It  was  held  in  like  manner,  in  Conover  v.  The  Mayor  of 


TO  FEDERAL  TRIBUNAL. 


1225 


The  couits  of  either  government,  as  it  would  seem,  may  also 
restrain  acts  which,  though  professedly  done  under  a  writ  or 
mandate  from  the  other,  are  manifestly  from  their  nature 
so  clearly  beyond  the  authority  relied  on  as  a  justification  as 
to  show  that  the  agent  grossly  misunderstood,  or  wilfully  ex- 
ceeded, his  powers.  Such  a  case  might  arise  were  the  cargo 
detained  by  the  collector  of  the  port  under  an  authority  to 
seize  the  vessel,  or  the  defendant  in  a  judgment  taken  under 
an  order  to  levy  on  his  goods,  or  a  woman  detained  as  a 
recruit  under  the  acts  authorizing  the  enlistment  of  men. 
Here  the  question  is  as  to  the  nature  and  extent  of  the 
power,  and  not  as  to  the  manner  in  which  it  has  been  exe- 
cuted ;  but  in  Cropper  v.  Coburn  ^  the  court  held  that  a  cir- 
cuit court,  of  the  United  States  may  enjoin  the  sheriff  from 
levying  on  the  goods  of  A  under  an  execution  against  B, 
and  that  a  like  restraint  may  be  put  by  a  State  court  on  an 
erroneous  levy  by  the  marshal.  This  case  is  now  overruled 
by  decisions  which  establish  that  the  relief  given  under  such 
circumstances  must  be  confined  to  compensation  in  damages, 
and  that  one  co-ordinate  tribunal  cannot  make  any  order  that 
will  impede  the  execution  of  the  writs  issued  by  another 
within  the  scope  of  its  jurisdiction.^ 

The  subject  is  not  free  from  difficulty  even  where  it  is  not 
complicated  by  the  relation  between  the  States  and  the  federal 
Government.  An  injunction  will  not,  ordinarily,  be  issued 
to  prevent  a  sale  by  a  sheriff  or  public  officer,  of  land  or 
goods  belonging  to  one  man  as  the  property  of  another,  be- 
cause the  sale  will  not  pass  the  title,  and  redress  may  be  had 
through  an  action  of  replevin  or  ejectment  against  the  pur- 
chaser,^ or  the  officer  may  be  made  answerable  in  damages.* 

New  York  (25  Barb.  513),  that  the  court  which  first  obtains  jurisdiction 
of  a  cause  may  enjoin  the  parties  from  bringing  the  same  cause  into  an- 
other court,  although  the  court  thus  secondarily  resorted  to  is  a  court  of 
chancery,  or  endowed  with  equity  powers." 

1  2  Curtis,  465. 

2  See  ante,  p.  1196;  2  Lead.  Cas.  in  Equity  (4  Am.  ed.),  1389,  1392. 

8  Shearick  v.  Huber,  6  Binney,  2;  Winch's  App.,  61  Pa.  124;  Tay- 
lor's App.,  93  Id.  21. 

*  Brewer  v.  Kidd,  23  Mich.  440. 


1226  SALE  OF  ONE  MAN's   GOODS 

Such  is  the  practice  of  the  common  law,  even  when,  as  in 
the  case  of  a  levy  on  personal  property  by  the  sheriff,  the 
effect  is  to  take  the  goods  out  of  the  complainant's  posses- 
sion, and  transfer  them  to  a  third  person ;  and  equity  will 
not  intervene,  save  exceptionally  to  prevent  irreparable  in- 
jury,i  or  where  the  seizure  is  manifestly  intended  to  promote 
some  sinister  or  private  end.  As  was  said  in  Winch's  Ap- 
peal ,2  "It  is  only  when  the  creditor  is  undeniably  proceeding 
against  right  and  justice  to  abuse  the  process  of  the  law  to 
the  injury  of  another  that  equity  intervenes  to  stay  his  hand. 
In  Hunter's  Appeal^  the  court  sustained  an  injunction  re- 
straining the  sale  of  a  wife's  real  estate  on  an  execution 
against  her  husband ;  but  the  decision  was  put  on  the  ground 
that  the  separate  property  of  a  married  woman  is  exempt 
by  statute  from  levy  and  sale  for  the  debts  of  her  husband, 
coupled  with  an  admission  in  the  pleadings  that  the  land 
levied  on  belonged  exclusively  to  the  wife."  This  fact  was 
a  controlling  element ;  and  in  Winch's  Appeal,^  where  the 
title  of  the  wife  was  disputed,  the  court  refused  to  restrain 
the  creditor  from  proceeding  with  his  execution  against  the 
alleged  interest  of  the  husband,  and  thus  preparing  the  way 
for  an  ejectment  to  test  the  right  of  ownership.^  It  is,  as  we 
have  seen,  established  under  the  recent  course  of  decision 
that  an  application  to  stay  the  execution  of  a  fieri  facias^ 
attachment,  or  other  judicial  writ,  or  for  the  restoration  of 
goods  wrongfully  taken  by  the  marshal  or  sheriff,  should  be 
made  to  the  court  which  issued  the  writ  and  has  the  exclu- 
sive control  of  the  steps  taken  to  carry  it  into  effect.^ 

The  limitation  set  to  the  power  of  the  State  courts  to  give 
specific  relief  against  wrongs  committed  under  color  of  an 
authority  of  the  United  States  is  entirely  just  as  regards 
arrests  and  levies  made  under  judicial  process,  but  may  have 

1  Lewis  V.  Levy,  16  Md.  85 ;  McCreery  v.  Sutherland,  23  Id.  471 ;  Tay- 
lor's App.,  93  Pa.  21 ;  Amis  v.  Myers,  16  Howard,  492;  Wilson  v.  Butler, 
3  Mumford,  559;  Watson  v.  Sutherland,  5  Wallace,  74. 

2  61  Pa.  424.  «  40  Pa.  194. 

4  61  Pa.  424.  ^  Taylor's  App.  93  Pa.  21. 

6  See  ante,  p.  1196. 


UNDER  A  WRIT  AGAINST  ANOTHER.  1227 

injurious  consequences  when  applied  to  acts  done  ministeri- 
ally, without  the  sanction  of  a  court,  and  not  under  its  con- 
trol. An  agent  of  the  Government  of  the  United  States,  or 
person  claiming  to  act  on  its  behalf,  who  arrests  me,  or  takes 
my  property,  must  show  some  writ  or  order  which  is  not 
manifestly  insufficient;  and  if  he  fails,  the  local  tribunals 
should  afford  a  remedy,  because  a  wrong-doer  might  other- 
wise screen  himself  and  effectuate  his  purpose  under  a  pre- 
tence of  authority  from  the  United  States.^  The  possibility 
of  such  abuses  is  evident  because,  according  to  a  recent 
work  on  military  law,  a  citizen  may  be  carried  to  the  farthest 
corner  of  the  vast  territory  of  the  United  States  under  a 
charge  of  desertion,  or  of  giving  aid  and  comfort  to  the  en- 
emy, and  there  tried,  convicted,  and  executed  by  a  military 
commission.2  That  the  right  of  the  State  court  to  intervene 
for  the  prevention  of  such  wrongs  exists  potentially,  and 
may  be  exercised  when  not  prohibited  by  Congress,  is  the 
more  obvious,  because  the  judiciary  acts  did  not  till  recently 
authorize  a  suit  to  be  brought  in  the  federal  courts  for  an 
injury  inflicted  by  an  officer  of  the  United  States,  and  left 
such  torts,  like  other  private  wrongs,  to  the  local  tribunals.^ 

The  remaining  question.  Have  the  State  courts  jurisdic- 
tion of  offences  against  the  United  States?  ordinarily  re- 
ceives a  negative  reply.*  It  is  a  general,  if  not  universal,  rule 
that  the  courts  of  one  sovereignty  will  not  take  cognizance 
of  nor  enforce  the  penal  code  of  another.^  It  is  for  the  sov- 
ereign whose  laws  are  violated  to  determine  whether  the 
offence  shall  be  condoned  or  requires  punishment.  The  ap- 
propriate conclusion  of  an  indictment  at  common  law  was 
against  "the  peace  of  our  sovereign  lord,  the  king,"  —  for 
which  in  Pennsylvania  we  substitute  "  the  peace  and  dignity 

1  See  Tyler  v.  Pomeroy,  8  Allen,  480;  Commonwealth  v.  Downes,  24 
Pick.  227;  United  States  v.  Wyngall,  5  Hill,  17;  AVilson  v.  Mackenzie, 
7  Id.  95. 

2  See  ante,  p.  980. 

8  See  Slocum  v.  Mayberry;  Buck  v.  Colbath,  3  Wallace,  334. 
*  Huber  v.  Reily,  53  Pa.  112,  118. 

^  Houston  V.  Moore,  5  Wheaton,  1,  35;  The  United  States  v.  Lathrop, 
17  Johnson,  4. 

VOL.  II.  —  37 


1228  A  STATE  CANNOT  PUNISH  AN   OFFENCE 

of  the  Commonwealth/'  —  and  the  omission  of  such  words 
was  fatal  on  a  motion  in  arrest  of  judgment,  unless  the 
defect  could  be  cured  by  an  amendment.  In  Scovill  v. 
Canfield,^  the  Supreme  Court  of  New  York  declined  to 
enforce  a  penal  statute  of  Connecticut,  and  in  The  United 
States  V.  Lathrop,  it  was  held  that  the  penalty  for  selling 
spirituous  liquors  contrary  to  the  revenue  laws  of  the  United 
States  could  not  be  recovered  in  a  State  court  notwithstand- 
ing an  express  provision  to  that  efPect  in  the  act  of  Congress. 
Spencer,  Ch-J.,  said  it  had  been  expressly  declared  in  Martin 
V.  Hunter,^  that  Congress  cannot  vest  any  part  of  the  judicial 
power  of  the  United  States,  except  in  courts  ordained  and 
established  in  conformity  with  the  Third  Article  of  the  Con- 
stitution, and  that  the  State  courts  were  not  the  inferior 
courts  contemplated  in  the  Article.  The  case  of  Ward  v. 
Jenkins  "  is  to  the  same  effect,  and  such  is  the  main  current 
of  decision.* 

A  seeming  exception  is  reconcilable  with  the  rule.  While 
the  States  and  the  United  States  are  for  many  purposes  po- 
litically distinct,  either  government  may  adopt  a  law  made 
by  the  other,  and  enforce  a  command  which  has  become  its 
own,  although  originally  issuing  from  an  extrinsic  source. 
Such  an  exercise  of  jurisdiction  is  inadmissible  unless  both 
governments  rule  over  the  same  territory,  and  their  subjects 
owe  allegiance  to  both;  but  may  well  occur  under  a  feudal 
system,  or  in  countries  organized  like  Switzerland  and  the 
United  States.  A  man  cannot  be  indicted  in  a  State  court 
under  a  law  passed  by  Congress,  but  an  indictment  may  be 
maintained  under  a  State  law,  providing  that  persons  who 
do  not  comply  with  an  act  of  Congress  shall  undergo  the 
penalties  which  it  prescribes.  Such  at  least  is  the  inference 
that  may  be  drawn  from  the  case  of  Houston  v,  Moore,^  al- 
though the  judges  differed  so  widely  in  their  views  as  to 
render  interpretation  difficult. 

1  14  Johnson,  339.  2  1  Wheaton,  330. 

8  10  Metcalf,  583,  587. 

4  Huber  V.  Reily,  53  Pa.  112,  118. 

5  3  S.  &  R.  169;  5  Wheaton,  1.     See  ante,  p.  1163. 


AGAINST  THE  LAWS   OF   THE  UNITED   STATES.         1229 

It  may  also  be  contended  that  as  the  State  laws  and  the 
laws  of  the  United  States  together  constitute  the  law  of  the 
land,  which  the  citizens  of  each  State  are  bound  to  obey,^  so 
either  government  may  afford  redress  for  a  violation  of  the 
laws  of  the  other,  whether  the  injury  is  to  the  public  or  to 
individuals.^  Congress  cannot  confer  jurisdiction  on  a  State 
court,  but  they  can  lay  down  rules  which  the  State  court 
may  administer  by  virtue  of  the  sovereign  power  of  the  State 
over  persons  and  things  within  its  boundaries.  This  is  con- 
ceded in  civil  cases,  and  there  would  seem  to  be  no  sufficient 
reason  why  it  should  not  be  true  of  criminal.^  The  case  is 
not  like  that  of  an  indictment  in  England  for  a  murder  or 
other  crime  committed  in  France,  because  the  French  law  is 
not  the  law  of  England,  while  the  laws  of  the  United  States 
are  laws  in  Pennsylvania.  It  is,  as  has  been  shown,  estab- 
lished, that  an  indictment  for  an  offence  against  a  State  may 
be  removed  to  a  federal  court  and  prosecuted  to  judgment, 
although  no  offence  has  been  committed  against  the  United 
States;*  and  the  United  States  should,  by  the  same  rule,  be 
entitled  to  appear  as  prosecutors  in  a  State  tribunal.  It 
was  accordingly  held  in  Buckwalter  v.  The  United  States  ° 
that  the  federal  government  might  proceed  in  the  courts  of 
Pennsylvania  for  the  recovery  of  a  penalty  imposed  by  an 
act  of  Congress  ;  and  such  would  seem  to  be  the  logical 
view,  notwithstanding  the  judgment  in  The  United  States 
V.  Lathrop.^ 

The  question  is  now  practically  set  at  rest  by  the  Revised 
Statutes,  Section  711,  which  enacts  that  the  jurisdiction  of 
the  courts  of  the  United  States  shall  be  "  exclusive  of  the 
courts  of  the  several  States  as  regards  all  crimes  and  offences 
cognizable  under  the  authority  of  the  United  States ;  "  but 

1  See  Claflin  v.  Houseman,  93  U.  S.  136. 

2  See  Houston  v.  Moore,  5  Wheaton,  1,  27. 

8  See  the  United  States  v.  Jones,  109  U.  S.  513,  520;  Houston  r. 
Moore,  5  Wheaton,  1,  27. 

*  See  ante,  p.  1155.  6  il  S.  &  R.  193. 

6  See  Claflin  v.  Houseman,  93  U.  S.  130;  Bletz  v.  The  Columbia  Bank, 
6  Norris,  87,  93. 


1230  A  STATE  CANNOT  PUNISH  AN  OFFENCE 

the  rule  thus  laid  down  might  be  abrogated  by  repealing 
the  prohibitory  clause. 

Whatever  the  rule  may  be  where  the  breach  is  solely  of  a 
law  of  Congress,  we  have  seen  that  acts  which  are  injurious 
both  to  a  State  and  to  the  United  States  may  be  forbidden 
by  both ;  and  the  existence  of  a  federal  law  rendering  an 
offence  criminal  will  not  preclude  the  enactment  of  a  similar 
statute  by  a  State.^  Under  these  circumstances  the  State 
courts  may  take  cognizance  of  the  offence  in  the  latter  as- 
pect, although  they  would  have  no  jurisdiction  over  it  in 
the  former.  But  for  this  principle  treason  could  seldom  be 
punished  by  a  State,  because  treason  against  a  State  is  gen- 
erally also  treason  to  the  Union. 

A  false  oath  taken  in  the  course  of  a  judicial  proceeding 
in  a  State  court  is  not  less  an  offence  against  the  peace  and 
dignity  of  the  State  because  the  court  is  administering  an 
act  of  Congress,  and  the  guilty  party  might  be  tried  and 
sentenced  for  the  same  cause  in  a  circuit  court  of  the  United 
States.2  In  Rumpf  v.  The  Commonwealth,  Gibson,  J.,  said 
that  the  act  of  13  Geo.  II.  chap.  7,  and  the  colonial  statute  of 
Feb.  3,  1743,  brought  the  naturalization  of  foreigners  within 
the  cognizance  of  the  courts  of  Pennsylvania,  and  there  was 
nothing  in  the  Constitution  of  the  United  States  to  abrogate 
the  authority  thus  conferred,  or  preclude  the  State  courts 
from  applying  the  rule  laid  down  by  Congress.  Their  juris- 
diction depended  on  the  laws  of  the  State,  but  they  might 
administer  the  laws  of  the  United  States,  which  were  also 
the  law  of  Pennsylvania.  Naturalization  was  eminently  a 
judicial  act,  as  presenting  a  cause  to  be  heard  and  decided 
on  evidence,  and  depending  on  whether  the  applicant  was 
or  was  not  legally  entitled  to  admission  as  a  citizen.  False 
swearing  in  the  course  of  such  a  proceeding  was  consequently 
perjury  under  the  common  law  of  Pennsylvania,  and  might 
be  punished  as  such  by  indictment.     That  it  was  also  an 

1  Fox  V.  Ohio,  5  Howard,  410;  The  United  States  v.  Manigold,  9  How- 
ard, 560;  Moore  v.  Houston,  3  S.  &  R,  569;  5  Wheaton,  1.  See  ante, 
p.  1151. 

2  Rumpf  V.  The  Commonwealth,  30  Pa.  475. 


AGAINST  THE  LAWS   OF  THE  UNITED   STATES.        1231 

oJEfence  against  the  federal  government  did  not  preclude  the 
exercise  of  jurisdiction  by  the  State,  When  a  man  stood  in 
such  a  relation  to  two  sovereignties  that  the  same  act  was 
a  breach  of  the  duty  which  he  owed  to  each,  punishment 
might  be  inflicted  by  both,  and  his  liability  to  chastisement 
by  one  could  not  be  set  up  as  a  defence  against  the  other. 

It  was  notwithstanding  decided  in  The  Commonwealth  v, 
Felton  ^  that  where  Congress  in  incorporating  a  bank  declare 
that  the  embezzlement  of  its  funds  shall  be  a  misdemeanor, 
and  prescribe  the  penalty,  an  act  of  assembly  providing  for 
the  punishment  of  every  one  who  participates  in  such  an 
offence  will  be  invalid,  even  as  regards  the  accessories,  al- 
though the  act  of  Congress  only  relates  to  the  principal.  It 
is  not  easy  to  reconcile  this  judgment  with  the  decision  in 
Ohio  V.  Fox,  that  circulating  false  or  spurious  coin  is  punish- 
able by  the  States  as  well  as  the  United  States ;  and  there 
can  be  no  doubt,  as  was  held  in  The  State  v.  Tuller,^  that  if 
the  General  Government  has  exclusive  jurisdiction  of  offences 
committed  in  the  internal  management  or  administration  of 
a  national  bank,  the  State  courts  may  take  cognizance  of 
any  wrong  that  is  committed  in  the  course  of  its  transactions 
with  third  persons  or  the  community  at  large. 

1  101  Mass.  204.  «  34  Conn.  280. 


LECTURE    LVn. 

Congress  Authorized  to  Coin  Money  and  regulate  the  Value  thereof.  —  A 
Promise  to  pay  Ten  Silver  Dollars  Numerical,  and  may  be  fulfilled  by 
the  tender  of  an  Eagle,  or  of  any  Coins  that  will  together  make  up  the 
Sum.  —  Payment  to  be  made  in  whatever  Money  is  Lawful  when  the 
Time  arrives.  —  Contracts  to  pay  a  given  Number  of  Dollars  distin- 
guished from  Contracts  for  the  Delivery  of  Bullion  or  Specific  Coins. 

—  Bank-notes  issued  with  the  Sanction  of  the  Government,  Money 
in  the  ordinary  acceptation  of  the  Term.  —  One  Metal  may  be  Substi- 
tuted for  another,  or  the  Intrinsic  Value  of  the  Coin  lessened  rela- 
tively to  Past  Contracts  as  well  as  Future.  —  Is  Printing  Coining? 
and  can  Paper  be  Used  instead  of  Metal  ?  —  The  Debates  in  the  Fed- 
eral Convention  not  a  Sure  Guide  in  the  Interpretation  of  the  Consti- 
tution.—  The  power  to  Borrow  carries  with  it  an  Implied  Right  to 
issue  Bills  of  Credit,  but  not  to  render  them  a  Legal  Tender  or  to  exact 
Forced  Loans.  —  Can  Paper  Money  be  made  a  Legal  Tender  under  the 
Right  to  declare  War  or  the  Right  to  Tax  ?  —  The  Power  to  Regulate 
Commerce  relates  directly  to  the  Means  by  which  Trade  is  prosecuted, 
and  includes  the  Currency  not  less  than  Telegraphy  or  Navigation.  — 
The  Power  to  Coin  Money  is  enabling,  and  does  not  preclude  a  recourse 
to  other  Means.  —  The  Framers  of  the  Constitution  unwilling  to  Sanc- 
tion or  Prohibit  Paper  Money.  —  The  Implied  Powers  are  as  much 
a  part  of  the  Expressed  Powers  as  if  they  were  conferred  in  Terms. 

—  Congress  or  a  State  Legislature  may,  in  the  exercise  of  their  Powers, 
incidentally  impair  Property  or  Contracts. 

By  Article  I.,  section  8,  Congress  are  empowered  to  coin 
money,  regulate  the  value  thereof  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures.  By  the  tenth 
section  of  the  same  Article,  no  State  shall  coin  money,  emit 
bills  of  credit,  or  make  anything  but  gold  and  silver  coin  a 
tender  for  the  payment  of  debts.  The  act  of  July  11,  1862, 
provides  that  the  notes  of  the  United  States  shall  be  lawful 
money  and  a  legal  tender  in  payment  of  all  debts,  pubHc  and 
private.  Was  this  act  valid  under  the  above  clauses,  or  any 
other  clause  bearing  on  the  subject  ?  The  inquir}'-  is  an  in- 
teresting one,  not  only  as  regards  the  point  involved,  but 


THE  POWER  TO  COIN  MONEY  ABSOLUTE.  1233 

for  the  light  thrown  on  the  authority  of  Congress  to  deter- 
mine wheat  laws  are  "  necessary  and  proper  to  carry  the 
enumerated  powers  of  the  government  into  effect,"  —  a  ques- 
tion which  has  never,  since  Chief-Justice  Marshall's  great 
judgment  in  McCulloch  v.  The  Bank,^  been  so  elaborately 
examined  as  it  was  in  The  Legal  Tender  Cases.^  The  fed- 
eral government  has  in  general  no  power  under  the  Consti- 
tution to  vary  a  contract,  or  substitute  a  different  mode  of 
performance  for  that  which  the  contract  prescribes.  Con- 
tracts are  governed  by  the  law  of  the  place  where  they  are 
made,  or  the  law  of  the  place  where  they  are  to  be  per- 
formed ;  and  the  interpretation  and  effect  of  an  agreement 
made  and  to  be  kept  in  a  State  will  consequently,  under 
ordinary  circumstances,  depend  on  the  laws  of  the  State,  and 
not  on  those  of  the  Union.  Congress  could  not,  for  ex- 
ample, provide  that  a  contract  for  merchandise  might  be  sat- 
isfied by  the  delivery  of  kine,  or  that  a  tender  of  money 
should  be  a  satisfaction  of  a  contract  for  cattle.  But  when 
the  act  to  be  performed  by  the  terms  of  a  contract  is  the 
payment  of  money,  the  United  States  may,  to  the  extent  of 
their  power  of  issuing  money  and  regulating  its  value,  say 
how  and  at  what  rate  the  payment  shall  be  made. 

This  results,  first,  from  the  authority  which  the  Constitu- 
tion has  conferred  upon  Congress  "  to  coin  money  and  regu- 
late the  value  thereof;"  and  next,  from  the  terms  of  the 
contract  itself,  which,  in  stipulating  for  money,  must  be  un- 
derstood as  meaning  lawful  money,  or,  in  other  words,  such 
money  as  shall  be  lawfully  issued  by  the  only  power  which  has 
authority  to  issue  money  under  the  Constitution.  An  agree- 
ment to  pay  in  silver  dollars  may,  accordingly,  be  fulfilled 
by  a  payment  in  gold,  because  gold  dollars  are  by  the  law 
of  the  land,  for  all  the  purposes  of  payment,  equivalent  to 
silver.^  The  material  words  in  every  such  case  are  those 
which  fix  the  numerical  amount  of  the  debt,  and  if  this  be 
tendered  the  creditor  cannot  refuse  to  receive  it  on  the 
ground  that  the  metal  of  which  the  pieces  are  composed  is 

1  4  Wheaton,  316.     See  ante,  p   105. 

2  8  Wallace,  603;  12  Id.  451;  110  U.  S  421. 
8  Mervine  v.  Sailor,  5  Philad.  422,  466. 


1234  PAYMENT  MAY  BE  MADE  IN  ANY  COINS 

different  from  that  for  which  he  stipulated  ;  nor  can  a  tender 
be  objected  to  as  insufficient  because  the  currency  has  been 
debased  since  the  debt  was  contracted,  and  the  sum  offered 
is  less  in  weight  or  value  than  would  have  been  due  but  for 
the  change.  If,  indeed,  the  contract  be  for  bullion,  for  so 
many  pounds,  ounces,  and  pennyweights  of  gold  or  silver, 
the  very  thing  contracted  for  must  be  offered,  as  in  the  case 
of  other  contracts  for  the  delivery  of  merchandise.  But  when 
it  is  expressly,  or  by  implication,  for  dollars,  the  only  point 
open  for  consideration  is  whether  the  stipulated  number  of 
dollars  has  been  paid  ;  and  no  investigation  will  be  made 
into  their  composition,  or  intrinsic  value,  except  for  the  pur- 
pose of  ascertaining  whether  they  correspond  with  the  legal 
standard,  and  are  dollars  within  the  meaning  of  the  law.^ 
There  are,  no  doubt,  cases  which  lie  so  near  the  dividing 
line  as  to  render  it  difficult  to  know  whether  the  parties 
have  bargained  for  weight  and  value,  or  simply  for  number, 
and  to  decide  between  a  creditor  who  demands  that  the 
pieces  tendered  shall  be  assayed  and  weighed,  and  a  debtor 
who  insists  that  they  shall  be  merely  counted.  Such  a  ques- 
tion may,  for  instance,  arise  with  regard  to  the  ground  rents 
payable  in  coin  of  a  stipulated  weight  and  fineness,  —  which 
were,  and  indeed  still  are,  not  uncommon  in  Pennsylvania, — 
and  in  other  cases  which  I  cannot  now  pause  to  enumerate. 
But  the  difficulty,  under  such  circumstances,  is  one  of  con- 
struction, and  not  of  principle  ;  and  when  the  contract  is 
unequivocally  for  dollars,  a  tender  of  such  dollars  as  Con- 
gress have  provided  will  fulfil  the  contract. 

It  results  from  these  considerations  that  the  power  of  Con- 

^  A  government  may,  notwithstanding,  establish  two  different  cur- 
rencies, and  leave  the  subjects  free  to  choose  in  which  they  will  keep 
their  accounts,  buy  and  sell,  or  become  answerable  in  any  other  way. 
Such  is  the  rule  in  the  United  States,  where,  under  the  interpretation 
given  to  the  acts  of  Congress  in  Bronson  v.  Rodes  (7  Wallace,  229),  the 
duties  on  imported  goods,  and  a  large  part  of  the  public  debt,  are  pay- 
able in  gold  and  silver;  and  whether  a  debtor  is  bound  to  pay  in  specie, 
or  in  the  notes  which  were  made  a  legal  tender  by  the  act  of  1862,  depends 
on  the  terms  of  the  agreement,  although  a  promise  to  pay  in  lawful 
money  must,  where  there  are  no  specific  words  disclosing  a  different 
intent,  be  fulfilled  in  paper,  and  not  in  coin. 


I 


THAT  TOGETHER  MAKE  UP  THE  SUM.  1235 

gress  over  the  currency  is  supreme.  It  has  no  limit,  because 
none  is  set  to  it  in  the  Constitution.^  Congress  may  by  law- 
declare  any  coin  equivalent,  for  the  purpose  of  payment,  to 
any  other  of  greater  or  less  intrinsic  value,^  and  by  a  necessary 
sequence  render  debts  contracted  in  coins  of  one  kind  pay- 
able in  coins  of  another  kind,  equalling  the  numerical  amount 
of  the  debt.  A  promise  to  pay  ten  dollars  silver  money  of 
the  United  States  may,  for  instance,  be  fulfilled  by  the  ten- 
der of  an  eagle,  or  of  ten  gold  dollars,  or  of  a  hundred  dimes. 
The  question  is  an  arithmetical  one,  whether  the  money 
proffered  by  the  debtor  makes  up  the  sum  for  which  he  is 
bound.  Were  Congress  to  substitute  a  different  metal  in 
coining  dollars,  as,  for  instance,  nickel  for  silver,  or  platinum 
for  gold,  no  one  could  question  the  validity  of  the  act.^ 

That  the  discretion  thus  conferred  on  Congress  may  be 
exercised  unwisely,  and  produce  effects  which  every  honest 
man  must  regret,  cannot  be  denied ;  but  it  results  from  the 
necessity  of  having  a  means  of  interchange  which  shall  be  so 
fixed  and  certain  that  its  legal  value  can  be  ascertained  by 

1  See  Gibbons  v.  Ogden,  9  Wheaton,  1,  191  ;  ante,  p.  430. 

2  The  Legal  Tender  Cases,  12  Wallace,  457,  548;  110  U.  S.  421,  449. 

8  See  The  Metropolitan  Bank  v.  Vandyck,  23  N.  Y.  400,  425;  Legal 
Tender  Cases,  12  Wallace,  549;  110  U.  S.  421,  449. 

So,  under  the  power  to  coin  money  and  to  regulate  its  value,  Congress 
may  (as  it  did  with  regard  to  gold  dollars  by  the  act  of  June  28,  1834, 
chap.  95,  and  with  regard  to  silver  dollars  by  the  act  of  Feb.  28,  1878, 
chap.  20)  issue  coins  of  the  same  denominations  as  those  already  current, 
but  containing  less  of  the  precious  metals  in  weight  or  value,  and  thereby 
enable  debtors  to  violate  the  spirit  of  their  obligations  while  adhering  to 
the  letter.  A  contract  to  pay  a  certain  sum  of  money,  without  any  stipu- 
lation as  to  the  kind  of  money  in  which  it  shall  be  paid,  may  always  be 
satisfied  by  payment  of  that  sum  in  any  currency  which  is  lawful  money 
of  the  place  and  time  at  which  payment  is  to  be  made.  1  Hale,  P.  C. 
192-194;  Bac.  Ab.  Tender,  B.  2;  Pothier,  Contrat  de  Vente,  No.  416; 
Pardessus,  Droit  Commercial,  Nos.  204,  205;  Searight  v.  Calbraith,  4 
Dall.  324.  As  observed  by  Mr.  Justice  Strong,  in  delivering  the  opinion 
of  the  court  in  the  Legal  Tender  Cases:  "  Every  contract  for  the  pay- 
ment of  money,  simply,  is  necessarily  subject  to  the  constitutional  power 
of  the  government  over  the  currency,  whatever  that  power  may  be,  and 
the  obligation  of  the  parties  is  therefore  assumed  with  reference  to 
that  power."    The  Legal  Tender  Cases,  12  Wallace,  457. 


1236     PAYMENT  MAY  BE  MADE   IN  WHATEVER  MONEY 

inspection,  and  computed  numerically,  without  pausing  to 
examine  what  it  is  intrinsically  worth.  And  as  this  object 
cannot  be  attained  without  some  common  arbiter  whose 
authority  is  recognized  by  all,  the  sovereign  is  everywhere 
entitled  to  declare  what  shall  be  money,  and  at  what  rate  it 
shall  be  taken  and  pass  from  hand  to  hand.  If  the  power  to 
do  this  did  not  exist,  or  remained  in  abeyance,  the  precious 
metals  would  be  of  comparatively  little  use  to  mankind ;  be- 
cause, although  less  susceptible  of  a  change  of  value  in  any 
one  year  than  most  other  commodities,  they  are  yet  liable  to 
variations  in  the  course  of  time,  which  necessitate  a  corre- 
sponding alteration  in  the  standard  of  the  currency.  That 
the  power  of  government  is  and  must  be  paramount  where 
money  is  in  question,  and  that  contracts  for  money  must  be 
presumed  to  be  made  with  the  full  knowledge  that  this 
power  exists  and  may  be  exercised,  has  accordingly  been 
held  in  most  countries  where  the  question  has  arisen  for 
judicial  consideration,^  and  is  said  by  Pothier  to  be  true 
even  when  the  payment  partakes  of  the  nature  of  a  restitu- 
tion, as  in  the  case  of  a  vendor  who  comes  to  redeem  property 
which  he  has  sold  conditionally,  by  returning  the  price  origi- 
nally given  for  it  by  the  purchaser. 

1  See  The  Emperor  of  Austria  v.  Kossuth  and  Day,  2  Giffard,  678; 
3  De  G.  F.  &  J.  217,  251 ;  Pardessus,  Co.urs  de  Droit  Commercial,  No.  205; 
Troplong,  Traite  de  la  Vente,  No.  163. 

In  The  Emperor  of  Austria  v.  Kossuth  and  Day,  3  De  G.  F.  &  J.  217, 
251  (ante J  p.  1134),  *'  it  was  urged  for  the  plaintiff  that  the  right  of  coin- 
ing money,  the/us  cudendce  monetce,  was  universally  acknowledged  to  be 
a  prerogative  of  sovereigns,  vested  in  them  for  the  benefit  of  their  sub- 
jects ;  that  this  prerogative  right  extended  no  less  to  the  creation  of  paper 
money  than  to  the  stamping  of  coin;  that  it  was  acknowledged  by  all 
nations  and  recognized  by  international  law;  and  that,  international  law 
being  part  of  the  law  of  England,  this  court  would  interfere  in  favor  of  the 
rights  recognized  by  and  founded  upon  it."  This  view  was  adopted  by 
the  Vice-Chancellor,  who  observed,  in  giving  judgment:  "That  the  right 
of  coining  money  is  the  prerogative  of  a  sovereign  is  laid  down  by  all  the 
writers  on  international  law;  and  I  see  no  reason  to  doubt  that  the  prerog- 
ative right  reaches  to  the  issue  of  paper  money.  Burlamaqui  (a)  (vol.  iii. 
p.  241)  mentions  and  treats  of  it  as  so  extending."  The  Emperor  of 
Austria  v.  Kossuth  and  Day,  3  De  G.  F.  &  J.  217,  251. 


IS  LAWFUL  WHEN  THE  TIME  ARRIVES.  1237 

"  It  remains  to  be  observed,  in  regard  to  the  price,  that  it 
may  be  rendered  in  money  different  from  that  in  which  it  is 
paid.  If  it  is  paid  to  the  seller  in  gold,  the  seller  may  repay 
it  in  pieces  of  silver,  or  vice  versa.  In  like  manner,  though 
subsequent  to  the  payment  of  the  price  the  pieces  in  which 
it  is  paid  are  increased  or  diminished  in  value,  —  though  they 
are  discredited,  and  at  the  time  of  their  redemption  their  place 
is  supplied  by  new  ones  of  better  or  worse  alloy,  —  the  seller 
who  exercises  the  redemption  ought  to  repay,  in  money  which 
is  current  at  the  time  he  redeems,  the  same  sum  or  quantity 
which  he  received  in  payment,  and  nothing  more  or  less. 
The  reason  is  that  in  money  we  do  not  regard  the  coins 
which  constitute,  but  only  the  value  which  the  sovereign 
has  been  pleased  that  they  should  signify."  ^ 

A  common  law  authority  to  the  same  point  may  be  found 
in  the  case  of  mixed  money ,2  to  which  I  may  add  Shoen- 
berger  v.  Watts,^  and  the  Legal  Tender  Cases.*  A  contract 
to  pay  or  deliver  the  money  of  one  country  in  another  may 
be  governed  by  different  principles,  which  it  is  unnecessary 
to  consider  on  this  occasion. 

Accordingly,  when  Congress,  during  the  presidency  of 
Jackson,  reduced  the  intrinsic  value  of  the  gold  eagle,  at 
the  instance  of  Mr.  Benton,  from  247  grains  of  pure  and 
270  grains  of  standard  gold,  at  which  it  had  been  fixed  by 
the  act  of  April  2,  1792,  to  232  grains  of  pure  and  258  of 
standard  or  alloyed  metal,  and  yet  at  the  same  time  declared 
that  every  such  eagle  should  be  of  the  value  of  ten  dollars, 
and  receivable  as  such  in  payment,  the  arguments  of  the 
opponents  of  the  bill  were  addressed  to  its  inexpediency 
and  injustice,  and  no  one  thought  of  asserting  that  it  was 
unconstitutional,  or  questioned  the  power  of  the  legislature 
to  declare  that  debts  might  be  paid  in  dollars  consisting 
of  a  greater  amount  of  copper  and  a  less  amount  of  gold 

1  Pothier,  Traite  du  Contrat  de  Vente,  No.  416. 

2  J.  Davies,  R.  48." 

8  1  Law  Register  (n.  s.),  553;  5  Philad.  51. 
*  12  Wallace,  457,  548,  566. 


1238       CHANGING  THE  STANDARD   OF  THE  COINAGE 

than   was  required  by  law  at   the  time  when  they   were 
contracted.^ 

It  is  proper  to  point  out  that  the  intervention  of  the  legis- 
lature in  this  and  other  cases  of  the  same  nature  does  not 
vary  the  contract,  and  merely  reduces  it  to  certainty  by  giv- 
ing a  construction  to  that  which  would  otherwise  be  vague 
and  indefinite.  An  agreement  for  the  payment  of  a  thou- 
sand dollars,  or  any  other  sum,  in  lawful  money  of  the  United 
States  would  fail  of  effect  from  the  generality  of  the  words 
employed,  and  the  want  of  a  standard  of  interpretation,  if 
the  government  did  not  ascertain  the  meaning  by  defining 
the  lawful  money  for  which  the  agreement  stipulates.  The 
rule  which  it  prescribes  may  operate  partially  and  unjustly, 
but  it  is  not  unjust  that  it  should  prescribe  the  rule,  because 
the  agreement  is  so  worded  as  to  render  it  the  arbiter.  The 
parties  might  have  placed  themselves  beyond  the  reach  of 
Congress  by  stipulating  for  payment  in  wheat  or  bullion, 
taking  the  evil  with  the  good,  and  submitting  to  the  uncer- 
tainty, delay,  and  other  inconveniences  inseparable  from  such 
a  mode  of  contracting ;  among  which  may  be  mentioned  the 
loss  of  the  right  to  ascertain  the  amount  due  by  computation, 
and  the  necessity  for  calling  a  jury  to  assess  the  damages. 
Or  they  might  agree  that  government  should  fix  the  value 
of  what  was  to  be  given  and  received,  by  entering  into  an 

1  The  Legal  Tender  Cases,  12  Wallace,  457,  471,  552. 

It  was  ingeniously  contended  by  counsel  in  the  Legal  Tender  Cases, 
and  reiterated  in  the  dissenting  opinion  of  Mr.  Justice  Clifford,  that  this 
worked  no  real  injury  to  the  creditor,  because  gold  dollars  previously  to 
the  change  were  worth  more  than  silver,  and  no  one  thought  of  tendering 
them  in  payment.  If  this  was  true  at  the  time,  the  danger  of  tampering 
with  the  currency  became  evident  not  long  afterwards,  when  the  influx 
from  the  mines  of  California  and  Australia  reduced  the  value  of  the  gold 
below  that  of  the  silver  dollar,  and  gave  an  opportunity  for  payment  in  a 
depreciated  currency  that  would  not  have  occurred  but  for  Mr.  Benton's 
measure  ;  "  as  before  no  one  would  pay  a  debt  with  gold,  so  no  one  now 
would  pay  it  in  silver."  A  still  greater  injury  was  done  to  public  credit 
in  1878  by  the  passage  over  the  President's  veto  of  a  bill  for  the  coinage 
of  silver  dollars  which,  though  made  a  legal  tender,  contain  less  than 
eighty-four  cents'  worth  of  bullion,  and  rate  in  the  markets  of  the  world 
at  least  sixteen  per  cent  below  the  debased  gold  dollar. 


DOES  NOT  IMPAIR  THE  OBLIGATION. 


1239 


express  or  implied  obligation  to  accept  whatever  Congress 
should,  in  the  legitimate  exercise  of  their  powers,  issue  as 
and  declare  to  be  lawful  money.  But  while  either  path  may 
be  taken,  both  cannot  be  pursued  simultaneously  ;  and  the 
choice  when  once  made  must  be  abided  by.  If  the  question 
of  value  is  left  to  the  government  by  bargaining  for  money, 
and  it  fails  in  the  performance  of  its  trust,  the  parties  must 
submit  as  they  would  have  been  obliged  to  yield  if  they 
had  stipulated  for  bullion,  and  the  jury  had  rendered  an 
erroneous  verdict.  This  will  be  true,  even  when  a  par- 
ticular kind  of  money  is  contracted  for,  so  long  as  the 
contract  is  for  lawful  money  of  the  country,  because  the 
limitation  will  be  rejected  as  inconsistent  with  the  general 
design  of  the  contract.  That  a  particular  must  yield  to  a 
general  intent,  when  both  cannot  stand  consistently  with 
each  other,  or  with  the  law,  is  a  well-settled  rule  in  the 
construction  of  grants  and  contracts  ;  and  no  repugnancy 
can  be  greater  than  that  which  must  result  from  an  attempt 
to  unite  the  different  and  irreconcilable  attributes  of  money 
and  merchandise,  of  bullion  and  coin,  of  that  which  is  to  be 
delivered  by  assay  and  the  scales  and  that  which  need  only 
be  counted.^ 

Without  enlarging  on  a  point  which  may  seem  too  well 
settled  to  be  open  to  controversy,  I  may  add,  in  order  to 
prevent  misconception,  that  if  a  change  in  the  standard  of 
the  coinage  involved  a  variation  of  contracts  payable  in  coin, 
it  would  be  no  argument  against  the  constitutionality  of  the 
statute  by  which  the  change  was  made.  The  States  are  for- 
bidden to  impair  the  obligation  of  contracts,  but  no  such 
restraint  is  imposed  on  the  United  States  ;  their  inability 
arises  solely  from  the  want  of  power,  and  ceases  to  exist 
when  a  contract  stands  in  the  way,  or  falls  within  the  scope 
of  any  of  the  powers  conferred,  expressly  or  impliedly,  by 
the  Constitution. 2  By  the  passage  of  a  bankrupt  law  Con- 
gress may  at  any  time  not  merely  vary,  but  abrogate,  the 


1  See  Shoenberger  v.  Watts,  5  Philad.  51,  56. 

2  See  ante,  p.  1233.     See  Broiison  r.  Rodes,  7  Wallace,  229. 


1240  BANK  NOTES  MONEY  IN  THE 

most  solemn  obligations ;  by  declaring  war  it  suspends,  or 
annuls,  every  agreement  which  cannot  be  carried  into  effect, 
giving  aid  and  comfort  to  the  enemy.  And  if  a  contract 
comes  in  conflict  with  the  power  of  Congress  to  issue  money 
and  declare  the  value  thereof,  there  can  be  no  doubt  that  the 
contract  must  give  way,  and  not  Congress.^  But  for  reasons 
which  have  been  already  assigned,  I  conceive  that  full  effect 
may  be  given  to  this  power  by  reading  contracts  for  money 
by  its  light,  and  using  it  as  a  key  to  their  meaning.  If 
treasury  notes  are  lawful  money  by  force  of  the  act  of  1862, 
the  declaration  that  they  should  be  a  legal  tender  was  super- 
fluous, and  they  may  be  tendered  under  the  terms  of  the 
contract  as  legally  interpreted.  If  they  are  not  money.  Con- 
gress could  not  make  them  a  legal  tender.^ 

To  ascertain  whether  a  tender  is  valid  within  these  prin- 
ciples, we  may  consider,  in  the  first  instance,  the  terms  of 
the  contract.  If  these  stipulate  for  lawful  money  of  the 
United  States,  the  question  may  readily  be  answered,  be- 
cause that  is  lawful  which  the  legislature  so  declares.  This 
may  be  true,  although  the  promise  is  for  a  given  sum  in  sil- 
ver dollars,  and  gold  is  tendered;  because  "dollar"  is  a 
term  of  art,  and  under  the  authority  to  coin  money  and  de- 
clare the  value  thereof,  Congress  have  enacted  that  gold  and 
silver  dollars  shall  be  monetary  units,  and  equivalent  when- 
ever the  contract  is  for  a  given  sum,  as  distinguished  from 
specific  coin.3  So  if  Congress  are  expressly  or  impliedly  au- 
thorized to  give  to  treasury  notes  or  bills  of  credit  the 
quality  of  lawful  money  of  the  United  States,  they  may  by  a 
parity  of  reasoning  provide  that  such  instruments  shall,  for 
all  the  purposes  of  payment,  be  equal  to  coin.^  There  is 
nothing  in  the  nature  of  things  to  forbid  such  a  conclusion, 
if  it  is  in  other  respects  consistent  with  the  language  of  the 
Constitution.    Such  instruments  are  promises  to  pay,  stamped 

1  The  Legal  Tender  Cases,  12  Wallace,  457,  550.     See  ante,  p.  575. 

2  The  Legal  Tender  Cases,  110  U.  S.  421,  429. 

8  The  Legal  Tender  Cases,  12  Wallace,  549;  110  U.  S.  421,  449. 
*  The  Legal  Tender  Cases,  12  Wallace,  549;  110  U.  S.  421,  449. 


ORDINARY  SENSE  OP  THE  TERM.  1241 

or  written  on  paper,  and  wanting  in  the  intrinsic  value  which 
must,  to  a  greater  or  less  degree,  belong  to  coin.  This,  how- 
ever, goes  no  part  of  the  way  towards  establishing  that  they 
are  not  money,  and  within  the  money-making  power  which 
is  an  established,  if  not  indispensable,  attribute  of  sover- 
eignty. A  promise  to  pay  a  dollar,  made  in  good  faith  by  a 
debtor  who  has  the  means  and  inclination  to  keep  his  word, 
may,  as  the  financial  history  of  this  country  demonstrates,  be 
more  valuable  than  a  coin  which,  though  stamped  as  a  dollar 
and  so  denominated,  contains  only  eighty  cents'  worth  of 
silver,  and  will  not  pass  for  more  beyond  the  limits  of  the 
United  States.  There  was  no  doubt  a  period  when  metallic 
currency  was  the  only  one  used  or  known,  and  when  the 
idea  had  not  yet  arisen  that  money  could  exist  in  any  other 
form ;  but  this  state  of  things  has  long  since  passed  away, 
and  much  the  larger  part  of  the  transactions,  for  which 
money  is  requisite,  are  now  carried  on  through  the  instru- 
mentality of  notes  like  those  which  Congress  has  recently 
declared  a  legal  tender. 

"  The  whole  fallacy  of  the  argument  for  the  defendant," 
said  Lord  Mansfield,  in  Miller  v.  Race,^  "  turns  upon  com- 
paring bank-notes  to  what  they  do  not  resemble,  and  ought 
not  to  be  compared  to,  namely,  to  goods,  or  to  securities  or 
documents  for  debts.  Now,  they  are  not  goods,  nor  securi- 
ties, nor  documents  for  debts,  nor  are  so  esteemed,  but  are 
treated  as  money,  as  cash,  in  the  ordinary  course  and  trans- 
action of  business,  by  the  general  consent  of  mankind,  which 
gives  them  the  credit  and  currency  of  money  to  all  intents 
and  purposes.  They  are  as  much  money  as  guineas  them- 
selves are,  or  any  other  current  coin  that  is  issued  in  common 
payments  as  money  or  cash."  ^ 

1  1  Burrow,  452. 

2  "  Money,"  said  Hamilton,  '*  is  the  very  hinge  on  which  commerce 
turns.  And  this  does  not  mean  merely  gold  or  silver;  many  other  things 
)iave  served  the  purpose  with  different  degrees  of  utility.  Paper  has  been 
extensively  employed."  Hamilton's  Opinion  on  the  Constitutionality  of 
the  Bank  of  the  United  States,  Hamilton's  Works,  vol.  iii.  p.  213.  New 
York  and  London,  1885.    So  Webster  observed:  "  Bank-notes,  in  a  strict 


1242        CAN  PAPER  BE  SUBSTITUTED  FOR 

When  notes  thus  became  money  in  fact  they  were,  as  the 
language  of  Lord  Mansfield  shows,  necessarily  recognized  as 
such  by  the  law,  and  brought  within  its  control,  and  govern- 
ment was  everywhere  compelled  to  regulate  the  new  circu- 
lating medium  which  had  grown  out  of  the  progress  of 
society,  and  say  when  and  by  whom  it  should  be  issued,  and 
how  far  it  should  be  made  or  allowed  to  become  a  substitute 
for  coin.i  Without  some  superior  and  adjusting  hand  paper 
currency  might,  as  experience  soon  proved,  easily  become  a 
great  and  pernicious  evil ;  and  the  motives  which  had  led  man- 
kind to  agree  with  unexampled  unanimity  that  the  emission 
and  regulation  of  currency  is  an  affair  of  state  which  govern- 
ment must  control  continued  to  operate  after  metallic  cur- 
rency had  to  a  great  extent  been  replaced  by  paper. 

It  is  not,  therefore,  surprising  that  the  power  to  make 
paper  money  a  legal  tender  should  have  been  generally 
claimed  and  exercised  in  modern  times,  and  it  would  not  be 
deemed  questionable  in  any  country,  or  under  any  form  of 
government  but  our  own .2  When  irredeemable  it  is  uni- 
versally regarded  with  disfavor,  and  yet  has  been  as  univer- 
sally adopted  as  a  necessary  expedient.  Such  has  been  the 
case  inmost  states  on  the  continent  of  Europe;  and  when 

and  technical  sense,  are  not  money ;  but  in  a  general  sense,  and  often  in  a 
legal  sense,  they  are  money.  They  are  substantially  money,  because  they 
perform  the  functions  of  money.  They  are  not,  like  bills  of  exchange  or 
common  promissory  notes,  mere  evidences  of  debt,  but  are  treated  as 
money  in  the  general  transactions  of  society.  .  .  .  And  this  character  of 
bank-notes  was  as  well  known  and  understood  at  the  time  of  the  adop- 
tion of  the  Constitution  as  it  is  now.  The  law  both  of  England  and  the 
United  States  regarded  them  as  money  in  the  sense  above  expressed." 
Webster's  Speech  on  the  Cm-rency,  Sept.  28,  1837,  Webster's  Works, 
vol.  iv.  p.  339. 

1  See  Hamilton's  Opinion  on  the  Constitutionality  of  the  Bank  of  the 
United  States,  Hamilton's  Works,  vol.  iii.  p.  213  ;  Webster's  Speech  on 
the  Currency,  Sept.  28,  1837,  Webster's  Works,  vol.  iv.  p.  341. 

2  The  jus  cudendcB  monetw,  or  prerogative  of  coining  money,  is  irre- 
spective of  the  material  employed,  and  is  universally  regarded  as  incident 
to  sovereignty.  Not  only  the  metals  may  be  used,  but  paper,  or  even,  it 
has  been  said,  leather.  The  Emperor  of  Austria  v.  Day  and  Kossuth,  2 
GifEard,  628;  3  De  G.  F.  &  J.  217.     See  ante,  p.  1134. 


METAL  UNDER  THE  POWER   TO  COIN  ?  1243 

specie  payments  were  suspended  in  England  under  the  pres- 
sure of  the  Napoleonic  wars,  Parliament  found  itself  obliged 
to  provide  that  the  notes  of  the  Bank  of  England  should  not 
be  paid  in  specie  nor  enforced  by  suit,  —  thus  virtually  ren- 
dering them  a  legal  tender  so  far  as  the  pbligation  which  they 
imposed  was  concerned.  And  as  the  law  now  stands,  Bank 
of  England  notes  are  a  legal  tender  for  all  demands,  except 
when  presented  for  redemption  at  the  counter  of  the  bank. 

I  do  not  refer  to  these  acts  as  a  proof  that  a  like  measure 
could  be  adopted  here.  It  is  the  felicity  of  the  American 
people  that,  while  they  are  sovereign,  they  have  given 
bonds  not  to  exercise  their  power  despotically,  and  cannot, 
even  on  the  pretence  of  necessity,  or  of  the  greatest  good 
of  the  gi-eatest  number,  disregard  the  rights  of  individuals. 
But  in  determining  whether  an  unenumerated  power  can 
be  used  in  aid  of  one  that  has  been  expressly  given,  what 
other  nations  have  done  under  similar  circumstances  may 
be  an  argument  for  regarding  the  same  course  as  necessary 
and  proper  here. 

If  we  now  turn  to  the  inquiry  whether  the  act  declaring 
that  treasury  notes  are  lawful  money  of  the  United  States  is 
expressly  or  impliedly  authorized  by  the  Constitution,  our 
attention  will  naturally  be  drawn  to  the  clause  by  which 
Congress  are  empowered  '*  to  coin  money,  and  declare  the 
value  thereof,  and  of  foreign  coin."  This  language  may  be 
thought  to  want  clearness  and  precision,  and  leaves  room  for 
an  argument  on  either  side  of  the  question.  If  the  Consti- 
tution had  said  that  Congress  might  make  or  issue  money, 
and  declare  the  value  thereof,  the  term  "  money "  would 
have  borne  its  most  general  signification,  and  included  paper 
money  as  well  as  coin.  If  it  had  said  that  coin  might  be 
stamped  or  issued,  and  the  value  thereof  declared,  there 
could  have  been  no  reasonable  doubt  that  a  metallic,  and 
not  a  paper,  currency  was  intended.  But  the  use  of  a  gen- 
eral term  to  describe  the  object,  attended  by  the  designation 
of  a  specific  means,  renders  it  more  or  less  questionable 
whether  the  end  is  to  be  narrowed  by  the  means,  or  the 
means  enlarged  to  meet  the  end.     The  language  of  Daniel, 

VOL.  II.  —  38         ' 


1244  IS  COINING  SYNONYMOUS 

J.,  in  Fox  V,  The  United  States,^  might  convey  the  idea  that 
coining  is  synonymous  with  stamping,  and  that  the  standard 
of  value  may  be  impressed  on  any  material  that  may  be  se- 
lected by  Congress.  Taking  the  words  in  the  natural  sense 
in  which  every  instrument  should  be  construed  when  a  con- 
trary intent  is  not  apparent,  the  power  "  to  coin  money  and 
regulate  the  value  thereof"  does  not  seem  in  terms,  or  in 
effect  to  be  a  power  to  issue  money  which  is  not  coin.  The 
argument  was  admirably  stated  b}^  Judge  Sharswood  in  Borie 
V.  Trott,2  and  subsequent  writers  on  the  same  side  have  done 
little  more  than  put  it  in  other  words.^ 

1  5  Howard,  410,  413.  2  5  philad.  366,  403. 

8  "  The  word  *  coin  '  is  one  of  well-settled  meaning.  The  primary 
sense  of  the  noun,  according, to  Dr.  Webster,  is  '  the  die  used  for  stamp- 
ing money ; '  and  the  undisputed  signification  of  the  verb,  according 
to  most  if  not  all  the  lexicographers,  is  '  to  stamp  metal  and  convert 
it  into  coin.'  In  Wharton's  'Law  Lexicon*  (ad  verbum)  it  is  said: 
'  Strictly  speaking,  coin  differs  from  money  as  the  species  differs  from 
the  genus.  Money  is  any  matter,  whether  metal,  paper,  beads,  shell, 
etc.,  which  has  currency  as  a  medium  in  commerce.  Coin  is  a  particular 
species,  always  made  of  metal,  and  struck  according  to  a  certain  process, 
called  coining.'  It  was  urged  at  the  bar  —  I  do  not  know  whether  seri- 
ously or  not  —  that  printing  is  stamping;  and  these  notes  might  therefore 
literally  be  said  to  be  coined.  No  such  use  of  the  word  in  any  author 
has  been  shown.  We  may  say,  figuratively,  '  to  coin  a  story,'  meaning  to 
invent  one,  but  never  *to  coin  the  book'  in  which  it  is  printed.  The 
story  is  a  fiction,  —  the  coinage  of  the  brain,  —  the  book  a  reality.  Surely, 
however,  no  one  will  contend  in  earnest  that  if  a  sufficient  number  of 
clerks  had  been  employed,  and  these  notes  had  all  been  written  with  the 
hand,  they  would  have  been  unconstitutional,  but  that  printing  them 
makes  them  valid.  To  state  the  case  thus  is  to  reduce  the  argument  to 
an  absurdity.  It  may  seem  like  laboring  unnecessarily  a  very  plain 
proposition,  but  I  will  hazard  some  further  illustrations. 

"  The  notes  in  question  draw  a  plain  distinction  on  their  face  between 
themselves  and  coins.  They  promise  to  pay  dollars.  What  is  a  dollar? 
To  a  similar  question,  what  is  a  pound.  Sir  Robert  Peel  answered:  '  A 
pound  is  a  definite  quantity  of  gold,  with  a  mark  upon  it  to  determine 
its  weight  and  fineness.'  Many  pages  have  been  written  to  controvert 
this  definition,  and  to  prove  that  a  pound  is  a  mere  abstraction,  —  some- 
thing like  a  mathematical  point,  without  length,  breadth,  or  thickness. 
But  common-sense,  I  think,  vindicates  Sir  Robert  Peel.  A  standard 
measure  must  be  some  actual  length  or  capacity,  — a  standard  weight 


WITH   STAMPING? 


1245 


The  reasons  given  by  Mr.  Justice  Strong,  in  the  following 
citation  from  Shollenberger  v,  Brinton,^  for  construing  the 

some  actual  weight.  How  else  can  other  weights  and  measures  be  com- 
pared with  it?  This  is  the  object  of  a  standard.  So  a  standard  of  value 
must  be  some  actual  value.  I  would  say,  drawing  the  definition  from  the 
statute-book,  —  I  know  not  where  else  to  look  for  it,  —  a  dollar  is  a  silver 
coin,  weighing  four  hundred  and  twelve  and  one  half  grains,  or  a  gold 
coin,  weighing  twenty-five  and  four  fifths  grains,  of  nine  tenths  pure  to 
one  tenth  alloy  of  each  metal.  These  notes,  then,  promise  to  pay  coins. 
To  say  that  they  are  themselves  coins  is  to  make  the  promise  and  per- 
formance identical.  As  they  do  not  state  on  their  face  when  they  are  to 
be  paid,  in  law,  if  issued  by  an  individual  or  corporation,  they  would  be 
payable  on  demand.  Whitlock  v.  Underwood,  2  B.  &  C.  157;  Story  on 
Notes,  par.  29.  ,  Payable  in  what?  In  themselves,  if  they  are  coins  or 
dollars.  They  are  promises  to  pay  on  demand,  payable  in  promises  to 
pay  on  demand.  A  promise  to  pay  may  represent  coin,  and  circulate  as 
such.  It  is  properly  designated  as  currency,  and  is  one  of  many  modes 
by  which  the  use  of  an  expensive  standard  may  be  spared  by  the  substi- 
tution, as  a  medium  of  exchange,  of  public  or  private  credit.  It  is  safe 
and  convenient,  as  well  as  economical,  as  long  as  it  represents  the  stand- 
ard by  being  immediately  convertible  into  coin.  But  in  its  very  nature 
it  is  not  coin.  Its  value  or  power  of  purchasing  other  commodities  de- 
pends as  well  upon  the  confidence  of  the  community  in  the  ability  and 
intention  of  the  issuers  to  redeem  it  as  upon  the  amount  issued.  Coin, 
upon  the  other  hand,  possesses  present,  actual,  intrinsic  value.  If  you 
obliterate  from  the  pound  weight  the  public  mark  which  attests  its  con- 
formity to  the  standard,  it  still  weighs  the  same  as  before.  So  you  may 
erase  the  image  from  the  coin,  yet  its  value  remains.  Blot  out,  however, 
the  superscription  from  these  pieces  of  paper,  and  nothing  remains;  they 
are  worthless.  The  stamp  on  the  coin  is  really  nothing  but  a  certificate 
of  the  weight  and  fineness  of  that  piece  of  metal.  Government  guaran- 
tees nothing  but  this,  —  makes  no  contract  to  deliver  corn,  wool,  or  leather 
in  exchange  for  it.  The  power  of  regulating  its  value  can  only  extend  to 
declaring  that  in  law  a  certain  number  of  one  coin  shall  be  deemed  the 
equivalent  of  another  of  a  different  denomination,  in  contracts  and  other 
transactions.  In  the  market  unequal  values  cannot  be  made  equal  by 
law.  Congress  has  no  power  to  enact  how  many  bushels  of  wheat  an 
eagle  shall  exchange  for;  and  if  they  had,  and  should  make  the  experi- 
ment, the  act,  like  all  attempts  by  government  to  change  the  laws  of 
value,  which  are  natural  laws,  would  be  futile.  .  .  . 

"  If  the  word  '  coin'  has  any  more  general  or  figurative  sense  in  the 
phrase  '  to  coin  money '  than  that  I  have  assigned  to  it,  it  must  be  held 
to  have  the  same  in  other  parts  of  the  article.     In  foreign  coin  will  be 


1  52  Pa.  9,  67;  Fletcher  v.  Peck,  6  Cranch,  87. 


1246  IS   COINING  SYNONYMOUS 

coinage  power  as  authorizing  the  creation  of  money  in  anj^ 
form,  are,  however,  so  cogent  as  to  inspire  the  reasonable 
doubt  which,  according  to  numerous  authorities,  should  in- 
duce the  judiciary  to  hesitate  in  declaring  the  means  provided 
by  Congress,  for  the  attainment  of  an  end  enumerated  in  the 
Constitution,  an  excess  of  power,  and  setting  them  aside. ^ 

"  When  [said  he]  it  is  considered  in  what  brief  and  comprehen- 
sive terms  the  Constitution  speaks,  and  how  sensible  its  framers 
must  have  been  that  emergencies  might  arise  when  the  precious 
metals  might  prove  inadequate  to  the  wants  of  the  government  and 
the  need  of  the  people ;  when,  also,  it  is  considered  that  paper 
money  was  almost  universall}'  in  use  as  a  medium  of  exchange,  I 
cannot  think  it  a  latitudinarian  construction  of  the  Constitution  to 
regard  the  phrase  *  coin  monej'  and  regulate  its  value '  as  s^'nonj'- 
mous  with  making  mone}',  or  suppl3'ing  a  currenc}'.  If  it  had  been 
the  design  to  confer  the  power  of  declaring  what  should  be  money, 
in  what  language  could  it  have  been  conferred  more  appropriate 
than  that  which  was  used?  It  was  purposely  comprehensive. 
Without  a  regard  to  the  object  intended  it  amounted  to  no  grant 
at  all.  Congress  was  not  empowered  in  express  terms  to  declare 
what  should  be  mone}',  nor  to  purchase  bullion  for  coining ;  3'et 
without  these  powers  the  authority  to  coin  would  not  have  effect- 
uated the  objects  for  which  it  must  have  been  given.  The  power, 
then,  cannot  be  construed  literally.     If  it  is  it  is  no  power  at  all. 

included  foreign  paper  money,  and  Congress  may  regulate  its  value  and 
make  it  a  legal  tender.  They  may  thus  treat  notes  of  the  Bank  of  Eng- 
land and  France,  Austrian  and  Russian  government-money,  but  not  State 
bank-notes.  Congress  have  no  power  of  regulating  the  value  of  any 
money  except  foreign  coins,  and  money  coined  by  its  own  authority.  If 
to  coin  money  means  to  stamp  paper,  then  the  clause  which  forbids  the 
States  'to  emit  bills  of  credit'  was  unnecessary;  the  prohibition  to  coin 
money  included  it.  The  terms  of  that  very  prohibition  show  that,  in  the 
minds  of  the  makers  of  the  Constitution,  'to  coin  money '  and  'emit  bills 
of  credit '  were  two  entirely  distinct  and  different  things.  In  short,  in 
whatever  point  of  view  it  is  regarded,  it  seems  to  me  that  the  position 
that  this  clause  authorizes  or  permits  any  other  but  metallic  money  is 
untenable."    Borie  v.  Trott,  5  Philad.  R.  366,  403. 

1  Shollenberger  v.  Brinton,  52  Pa.  9,  67;  Legal  Tender  Cases,  12 
Wallace,  437,  531;  United  States  v.  Harris,  106  U.  S.  629;  Borie  v. 
Trott,  5  Philad.  366,  393.  See  Professor  Thayer's  article  in  the  Harvard 
Law  Review  for  September,  1887,  pp.  73,  92  note. 


WITH  STAMPING?  1247 

If  coining  money  and  regulating  its  value  means  no  more  than  put- 
ting a  stamp  on  pieces  of  metal,  and  declaring  what  the}'  are  worth, 
it  is  no  power  over  the  currency,  and  there  is  no  legalized  currency. 
Stamping  pieces  of  metal  does  not  make  them  mone}-.  Coining 
mone}',  therefore,  and  regulating  its  value,  means  something  more 
than  making  coins  out  of  metallic  substances.  And,  again,  there 
is  no  restriction  to  any  particular  metals.  The  States  may  not 
enact  that  anything  but  gold  and  silver  shall  be  a  legal  tender,  but 
Congress  may  coin  money ;  that  is  to  say,  the  opponents  of  the 
constitutionality  of  this  act  give  the  character  of  money  to  pieces 
of  metal.  It  has  made  money  out  of  copper,  and  declared  it  a 
legal  tender  for  small  amounts.  Its  power  to  do  this  has  not  been 
questioned.  Nor  is  there  an}*  provision  that  the  pieces  of  metal 
which  Congress  ma}*  coin  as  money  shall  have  a  legal  value  cor- 
responding at  all  to  the  intrinsic  value  of  the  metal  in  the  market. 
Upon  this  subject  the  Constitution  is  silent.  The  regulation  of 
value  may  be  changed  from  time  to  time ;  it  has  been  more  than 
once,  without  denial  of  the  power  of  Congress  to  change  it.  Our 
coins  have  been  debased,  and  a  smaller  weight  of  pure  gold  or 
silver  is  now  required  for  a  dollar  than  was  formerly  required.  It 
seems,  therefore,  to  have  been  left  to  Congress  to  determine  how 
far  the  statutory  value  of  coined  metal  should  correspond  with  the 
market  value  of  the  same  metal  as  bullion.  It  is  not  claimed  that 
the  expression  '  to  coin  money  and  regulate  the  value  thereof  ex- 
presses or  implies  any  other  restriction  than  that  the  substance  of 
which  it  is  coined  shall  be  metallic.  But  it  is  possible  that  gold  or 
silver  be  formed  into  a  leaf  not  thicker  than  bank-note  paper.  If 
upon  such  a  leaf  stamped  in  any  way  a  value  be  affixed  by  Con- 
gress of  one  hundred  dollars,  why  is  it  not  money,  even  in  the 
view  of  those  who  insist  that  coining  money  is  applicable  only  to 
metallic  substances  ?  There  is  no  prescription  of  any  form  for  the 
pieces  of  money  that  may  be  coined.  Thus  it  appears  that  the 
object  of  the  power  was  to  enable  Congress  to  furnish  a  currency ; 
and  the  nature  and  value  of  the  material  of  which  it  is  to  be  con- 
stituted are  certainly  a  subordinate,  if  not  an  immaterial,  thing. 
Indeed,  the  intrinsic  value  of  the  material  is  left  wholly  to  the  dis- 
cretion of  Congress.  And  it  ma}^  be  added  that  the  literal  con- 
struction of  the  clause  *  to  coin  money  and  regulate  the  value 
thereof,'  so  much  insisted  upon  in  the  argument  against  the  con- 
stitutionality of  the  act  of  Feb.  25,  1862,  not  only  renders  the 


1248  PAPER  CUERENCY  ISSUED 

power  nugatory,  but  it  is  at  variance  with  the  acknowledged  rules 
for  construing  the  other  substantive  powers  granted  to  Congress. 
They  have  never  been  construed  literally.  Thus  the  power  to 
make  war  and  carry  it  on  is  conferred  by  the  words  '  declare  war/ 
A  literal  construction  of  these  words  would  limit  the  power  of 
Congress  to  a  mere  avowal  of  the  existence  of  war.  So  the  power 
to  regulate  commerce  has  always  been  construed  according  to  its 
spirit,  not  its  letter.  It  has  even  been  held  that  under  it  foreign 
commerce  might  be  destroyed  in  a  time  of  peace.  Such  was  in 
effect  the  decision  that  sustained  the  constitutionality  of  the  em- 
bargo. The  construction  given  to  the  power  to  establish  post- 
oflSces  and  post-roads  is  another  illustration  of  the  understanding 
that  the  express  substantive  powers  of  Congress  are  not  to  be  con- 
strued literally.  Why  then  should  the  power  to  coin  money  be  so 
construed?  When  the  Constitution  was  adopted  the  great  thing 
sought  in  regard  to  the  currency  was  uniformit}'  of  value.  This 
could  not  be  secured  by  local  legislation.  Hence  the  restrictions 
on  the  States,  and  the  grant  to  the  federal  legislature  without  any 
express  restriction.  An  exclusively  metallic  currency  was  not 
suited  to  the  exigencies  of  a  civilized  and  commercial  age.  It  had 
proved  inadequate  during  the  Revolutionary  War,  and  could  not 
meet  the  wants  of  a  rapidly  extending  trade.  In  view  of  this  it 
appears  to  me  no  unwarranted  stretch  of  constitutional  authority 
to  regard  a  grant  of  power  to  coin  mone3^  as  no  prohibition  of  a 
power  to  make  and  use  paper  money  as  a  means  for  executing 
other  great  powers  of  the  government,  if  it  be  not  in  itself  a  gen- 
eral and  unrestricted  power  to  create  a  currency."  ^ 

The  power  to  coin  money  and  to  declare  the  value  thereof 
does  not  stand  alone,  and  must  be  considered  in  connection 
with  other  powers  which,  with  more  or  less  reason,  have 
been  held  to  warrant  the  creation  of  a  paper  currency,  and 
making  it  a  legal  tender.  These  are  the  power  to  borrow 
money,  the  power  to  declare  war,  the  power  to  tax,  and  the 
power  to  regulate  commerce  with  foreign  nations  and  among 
the  States.  The  right  of  Congress  to  emit  bills  of  credit, 
and  render  them  a  legal  tender  under  the  above  clauses,  con- 
sidered separately  or  in  connection  with  the  coinage  power, 
is  the  matter  in  dispute.     The   last-named   power  was  re- 

1  52  Pa.  67. 


INDIRECTLY  BY  THE  STATES.  1249 

garded  by  some  jurists  as  not  merely  authorizing  a  specie 
currency,  but  precluding  the  creation  of  money  in  any  other 
form.  Agreeably  to  their  view  the  Constitution,  in  desig- 
nating a  specific  method,  impliedly  prohibited  every  other.^ 
It  was  contended,  on  the  other  hand,  that  Congress  would 
not  have  been  entrusted  with  the  power  to  convert  the 
metals  into  money,  and  give  them  a  legal  value  which 
may  differ  widely  from  the  actual,  had  the  intention  been 
to  deny  them  a  like  power  should  a  paper  currency,  owing 
to  the  force  of  circumstances,  take  the  place  of  specie,^ 
The  United  States  were  empowered,  and  the  States  forbid- 
den, to  issue  the  metallic  currency  which  the  framers  of  the 
Constitution  contemplated ;  and  the  States  were  also  forbid- 
den to  emit  bills  of  credit,  and  make  anything  but  gold  or 
silver  a  legal  tender,  while  no  such  restriction  was  imposed 
on  the  United  States.  The  prohibition  was  evaded,  and  a 
paper  currency  issued  by  banks  created  by  State  legislation, 
which  took  the  place  of  specie  on  the  occurrence  of  the  Civil 
War,  as  it  had  done  during  the  war  of  1812  with  England, 
and  at  each  financial  crisis ;  and  the  country  was  forced  to 
depend  for  its  circulation  on  the  depreciated  notes  of  private 
corporations.^  It  was  a  natural  inference  that  Congress  might 
regulate  the  currency  in  its  existing  form.  Such  was  the 
view  indicated  by  Hamilton,  and  subsequently  adopted  by 
Madison,  by  the  elder  Dallas,  by  Calhoun,  by  Webster,  by 
Chase,  —  m  fine,  by  all  the  eminent  men  of  either  party  who 
had  occasion  to  deal  practically  with  the  currency.*  And 
when  the  question  was  brought  to  the  test  of  a  judicial 
decision,  both  sides  not  only  agreed  on  this  point,  but  went 
further,  by  holding  that  Congress  might  issue  bills  of  credit, 
and  suppress  the  State  banks  by  prohibitory  taxation,  —  the 

1  Borie  v.  Trott,  5  Philad.  366,  397. 

2  See  Mr.  Calhoun's  Speech  of  Feb.  26,  1816,  on  the  Bank  Bill,  as 
cited  in  Webster's  Works,  voL  iv.  pp.  350,  461.     See  ante,  p.  276. 

«  See  ante,  p.  268. 

*  See  Hamilton's  Works,  vol.  iii.  p.  215;  Madison's  Message  of  Dec. 
5,  1815;  Webster's  Works,  vol.  iii.  pp.  335,  346,  348,  461;  Veazie  v. 
Fenno,  8  WaUace,  537;  The  Legal  Tender  Cases,  12  Id.  457,  543,  577. 


1250  BILLS   OF   CREDIT  MAY  BE  ISSUED 

difference  being  whether  rendering  treasury  notes  a  legal  ten- 
der was  an  appropriate  means  of  accomplishing  the  object.^ 

The  power  to  contract  loans,  like  the  other  powers  enume- 
rated in  the  Constitution,  is  given  in  brief  and  comprehen- 
sive terms.  Congress  shall  have  power  to  borrow  money  on 
the  credit  of  the  United  States.  When  an  authority  is  be- 
stowed absolutely  for  governmental  purposes,  no  limitations 
or  restrictions  can  be  implied  except  those  incident  to  the 
subject-matter,  and  the  end  for  which  the  authority  is  con- 
ferred. Within  these  limits  it  is  paramount,  although  it  can- 
not be  carried  further  for  reason  of  policy  or  convenience.^ 
Congress  accordingly  may,  in  borrowing  money,  give  such 
evidences  of  the  amount  received  as  will  satisfy  the  lender, 
and  induce  him  to  make  the  loan  on  favorable  terms.  This 
right  belongs  to  every  debtor,  and  can  hardly  be  denied  to 
the  government  of  the  United  States. 

The  words  to  "  emit  bills  of  credit "  were,  it  is  true, 
stricken  from  the  clause  authorizing  the  borrowing  of  money 
when  it  was  debated  in  the  convention ;  but  the  vote  was, 
according  to  Mr.  Madison's  report,  influenced  by  the  belief 
that  the  power  would  be  implied.^  Arguments  from  what  is 
said  in  the  course  of  debate  are  not  safe  guides  in  the  inter- 
pretation of  any  law  or  charter,  and  least  of  all,  as  regards 
the  Constitution  of  the  United  States;  for,  as  it  became 
law  through  the  ratification  of  the  conventions  chosen  in  the 
several  States,  to  know  what  they  approved  we  must  look  to 
the  perfected  instrument,  and  not  to  the  steps  by  which  it 
was  wrought  out.  Otherwise  the  door  is  thrown  open  to 
conjecture,  and  a  latitude  given  which  may  be  abused  in  turn 
by  every  party.  To  assign  the  conflicting  views  of  the  dele- 
gates, who  sat  with  closed  doors  in  Philadelphia,  as  a  reason 
for  not  following  the  natural  import  of  the  instrument  which 
they  drew  and  the  people  of  the  United  States  adopted,  is 
not  unlike  interrogating  the  conveyancer  as  to  his  purpose 

1  The  Veazie  Bank  v.  Fenno,  8  Wallace.     See  ante,  p.  269. 

2  Gibbons  v.  Ogden,  9  Wheaton,  1.     See  antey  p.  425. 

3  1  Elliott's  Debates,  pp.  345,  370;  Legal  Tender  Case,  110  U.  S.  421, 
443. 


UNDER  THE  POWER  TO  BORROW. 


1251 


in  writing  the  deed.  When  the  question  is  political,  not 
whether  the  power  exists,  but  should  it  be  exercised  in  the 
way  proposed,  a  different  rule  prevails,  and  the  opinions  of 
the  statesmen  who  have  passed  away  may  properly  influence 
their  successors. 

If  what  was  said  by  the  legislators  is  entitled  to  any 
weight  in  the  construction  of  a  statute,  it  can  only  be  as  a 
commentary,  depending  for  its  effect  on  the  truth  and  force 
of  the  reasons  assigned  by  the  speakers. 

So  far  the  argument  from  the  power  to  borrow  is  indis- 
putable ;  but  there  is  a  long  interval  from  these  premises  to 
holding  that ,  the  proofs  that  a  debt  exists  may,  if  the  cred- 
itor thinks  fit,  be  used  as  a  means  of  discharging  the  obliga- 
tions which  he  has  incurred  to  third  persons.  Bills  of  credit, 
and  bonds  payable  to  bearer,  may  be  issued  and  perform  the 
office  of  money  by  general  consent,  as  long  as  the  credit  of 
the  government  holds  good ;  but  this  may  be  said  of  the 
notes  of  an  individual,  or  a  body  corporate.  To  make  them 
money,  something  more  must  be  done;  they  must  be  ren- 
dered a  legal  tender,  or,  what  comes  to  the  same  thing,  must, 
like  coin,  have  a  value  which  is  established  by  law,  and  in- 
disputable. How  the  right  to  borrow  money  warrants  such 
a  result  cannot  readily  be  understood.  Such  a  power  carries 
with  it  an  implied  right  to  give  notes,  with  which  the  lender 
may  satisfy  his  creditors  if  they  consent ;  this  is  the  premise. 
Therefore  the  lender's  creditors  may  be  compelled  to  take 
the  notes  in  payment,  though  they  distrust  the  borrower  ; 
this  is  the  conclusion.  Can  it  be  described  as  just  or 
logical  ? 

The  difference  between  the  right  to  emit  bills  as  a  means 
of  borrowing,  and  the  right  to  render  them  a  legal  tender, 
was  shown  with  great  clearness  in  the  dissenting  opinions  of 
Davis  and  Selden,  JJ.,  in  the  Metropolitan  Bank  v,  Van- 
dyck,^  on  grounds  which,  if  the  question  is  still  open,  may  be 
deemed  unanswerable.  A  majority  of  the  court  were,  how- 
ever, of  opinion  that  the  government  may,  in  borrowing  money, 


1  23  New  York,  400. 


1252  NO  IMPLIED   POWER  TO 

make  the  bonds  or  notes  which  it  gives  for  the  amount  lent 
compulsorily  receivable  by  third  persons ;  and  this  view  was 
subsequently  adopted  when  the  question  came  before  the 
Supreme  Court  of  the  United  States.^  Such  a  construction 
virtually  empowers  Congress  to  levy  forced  loans  and  benev- 
olences. True,  the  money  is  not  taken  by  force  from  the 
lender,  but  he  is  authorized  to  compel  his  creditors  to  accept 
the  credit  of  a  government  which  they  perchance  distrust, 
and  surrender  the  real  and  pei-sona]  securities  which  he 
pledged  for  the  debt.  It  will,  I  suppose,  be  conceded  that 
Congress  could  not  require  the  holder  of  a  mortgage  to  as- 
sign, or  hand  it  over  to  the  government,  in  return  for  the 
bonds  or  notes  of  the  United  States.  Such  an  act  would  be 
taking  private  property  for  a  use  which  is  not  specific,  or 
within  the  scope  of  the  right  of  eminent  domain,  or  a  legiti- 
mate application  of  the  power  to  borrow  money .^  Is  the  case 
materially  dijQPerent  when  the  object  is  attained  indirectly,  by 
enabling  the  mortgagor  to  satisfy  the  mortgage  with  a  note 
given  for  the  money  which  he  lends  to  the  government.  In 
either  case  the  mortgagee  is  deprived,  not  merely  of  a  chose 
in  action,  but  of  property  which  is  as  much  his  for  all  the  pur- 
poses of  obtaining  payment  as  if  it  were  conveyed  absolutely. 
Such  an  enactment  violates  the  fundamental  principle  that 
A's  property  shall  not  be  transferred  without  his  consent 
to  B,  directly,  or  by  authorizing  B  to  take  it  in  exchange  for 
something  which  A  is  not  willing  to  receive.^ 

It  might  have  been  thought  that  when  deducing  the  right 
to  make  paper  money  a  legal  tender  from  the  power  to 
borrow  was  held  to  involve  such  consequences,  it  would 
have  been  abandoned,  as  leading  to  an  untenable  conclu- 
sion. But  in  the  Legal  Tender  Cases  Bradley,  J.,  frankly 
described  "  the  power  of  the  government  to  borrow  money  " 
as  "  a  power  to  be  exercised  with  the  consent  of  the  lender 
if  possible,  but  to  be  exercised  without  his  consent  if  neces- 

1  See  The  Legal  Tender  Cases,  12  Wallace,  457;  Juillard  v.  Green- 
man,  110  U.  S.  421. 

2  See  ante,  p.  333. 

8  See  The  Legal  Tender  Cases,  12  Wallace,  456,  580. 


EXACT  FORCED  LOANS.  1253 

sary."  It  followed  that  "when  exercised  in  the  form  of 
legal  tender  notes,  or  bills  of  credit,  it  may  operate  for  the 
time  being  to  compel  the  creditor  to  receive  the  credit  of  the 
government  in  place  of  the  gold  which  he  expected  to  re- 
ceive from  his  debtor."  The  greater  contains  the  less,  and 
the  premise  cannot  be  admitted  without  accepting  the  con- 
clusion ;  but  it  is  a  premise  which  would  have  been  deemed 
inadmissible  until  within  the  last  twenty  years.  During  the 
long  interval  between  Magna  Charta  and  the  adoption  of  the 
Constitution,  few  things  were  more  odious  to  the  English 
race  than  the  extortion  of  money  as  a  loan.  If  it  is  not  a 
deprivation  within  the  meaning  of  the  Fifth  Amendment 
nothing  is  a  deprivation.  It  is  not  analogous  to  the  right  of 
eminent  domain,  because  that  can  be  exercised  only  where 
property  is  specifically  appropriated  to  some  need  which  can- 
not be  satisfied  in  any  other  way.^  Nor  is  it  taxation,  which 
bears  equally  on  all  in  proportion  to  their  means.  It  is  more 
nearly  confiscation,  subjecting  the  few  to  a  burden  which 
should  be  shared  by  all.  No  one  contends  that  the  Treasury 
can  be  replenished  by  seizing  land  or  goods  and  converting 
them  into  money ;  and  choses  in  action  are  as  much  property 
as  things  in  possession. ^  If  forced  loans  are  constitutional, 
there  must  be  some  means  of  compelling  the  citizen  to  obey ; 
he  may,  like  Hampden,  be  imprisoned,  or  his  property  may 
be  distrained  and  sold  under  a  writ  issued  by  the  Ex- 
chequer or  the  commissioners  appointed  to  carry  the  law 
into  effect.  The  thing  is  equally  objectionable  whatever 
means  are  employed. 

The  Legal  Tender  Acts  have  also  been  held  to  be  im- 
pliedly authorized  by  the  power  to  wage  war,  but  they  do 
not  seem  to  be  so  related  as  to  justify  the  inference.^ 
Issuing  paper  money  and  making  it  compulsorily  receiv- 
able may  afford  the  means  of  raising  armies,  procuring  sup- 
plies, and  conducting  a  campaign  ;  but  the  same  may  be  said 
of  forced  loans,  or  any  other  form  of  confiscation.     Declaring 

1  See  ante,  p.  333,  346.  «  See  ante,  p.  824. 

«  See  the  Metropolitan  Bank  v.  Vandyck,  27  N.  Y.  400,  425  ;  The 
Legal  Tender  Cases,  12  Wallace,  549. 


1254      POWER  TO  REGULATE  THE  CURRENCY 

war  does  not  convert  a  free  government  into  a  despotism, 
or  justify  the  conversion  of  private  property  to  public  use, 
except  to  supply  some  immediate  and  specific  need.^ 

There  is,  nevertheless,  an  aspect  of   the   question  which 
should  not  be  overlooked. 

The  power  to  borrow  money,  as  I  have  already  intimated, 
is   associated   with   others  which,  like  it,  cannot  be  effect- 
ually exercised   by  any  nation  that   is  powerless  to  control 
the    currency,    and   is    consequently   liable   to   be   hindered 
in  the  performance  of  its  functions  by  banking  companies, 
or  bodies  corporate  who  have  the  authority  which  it  lacks. 
A  government  authorized,  and  when   the   occasion   requires 
it   bound,    to   raise   and   maintain  armies^  to  build  and   fit 
out  fleets,  to   pay  the  salaries   of  legislators,  ambassadors, 
clerks,  and  other  public  functionaries,  and  to  raise  money  by 
taxation,  and  if  necessary  by  loans,  to  meet  these  and  the 
various  other  expenses  which  the  civil  and  military  adminis- 
tration of  government  demands,  is  by  an  implication  which 
cannot   be   withstood   also   authorized   to   create   and   issue 
money,  as  the  one  indispensable  means,  without  which  its 
express  authority  must  remain  a  dead  letter.     No  tax  can, 
for  instance,  be  laid  or  collected  without  some  standard  ac- 
cording to  which  it  is  to  be  paid ;  and  the  establishment  of 
a  currency  is  therefore  an  essential  pre-requisite  to  raising 
money  by  taxation.     If  it  be  said  that  taxes  might  be  laid  in 
kind,  or  paid  in  the  foreign  coin  which  would  flow  in  if  no 
currency  were  provided  by  law,  the  answer  is  that  this  would 
be  attended  with  too  many  inconveniences  to  be  adopted  in 
practice,  and  therefore  cannot  be  supposed  to  have  been  con- 
templated by  the  framers  of  the  Constitution.     "  To  desig- 
nate or  appoint  the  money  in  which  taxes  are  to  be  paid  is 
therefore  not  only  a  proper,  but  a  necessary  exercise  of  the 
power  of  collecting  them."  ^     In  like  manner  the  defence  of 
the  country  in  war  is  the  paramount  duty  of  the  government, 
as  it  is  the  virtue  of  the  citizen  ;  and  when  a  duty  of  so  much 
moment  is  enjoined,  the  means  for  its  performance  must  be 
presumed  to  be  given.     It  were  needless  to  enlarge  on  the 

1  See  ante,  p.  917.  2  Hamilton's  Works,  vol.  ill.  p.  208. 


KESULTING  PROM  THE  ENUMERATED   POWERS.      1255 


obvious  proposition  that  money,  always  a  chief  element  and 
means  of  success  in  war,  is  now  made  doubly  so  by  the  ad- 
vance of  science ;  but  it  is  important  to  observe  that  no  great 
and  protracted  war  has  been  waged  in  modern  times  without 
a  recourse  to  loans,  and  that  loans  cannot  be  effected  without 
a  full  and  abundant  supply  of  money.  A  country  obliged  to 
rely  at  such  a  crisis,  for  an  element  so  essential  as  the  cur- 
rency, on  a  casual  supply  from  abroad,  or  the  good-will  of 
corporations  or  bankers  over  whom  it  had  no  control  at  home, 
would  find  itself  powerless  in  the  hour  of  danger,  and  might 
perish  in  the  first  severe  trial  to  which  it  was  exposed.  This 
is  the  more  true  because  credit  fails  and  money  disappears 
from  its  accustomed  channels  at  the  approach  of  war  and 
insurrection,  and  the  facilities  for  obtaining  money  diminish 
as  the  need  of  it  is  greater.  This  evil,  which  rose  to  an 
alarming  height  during  the  war  of  1812  with  England,  and 
recurred  with  each  financial  crisis,  could  not,  as  Madison  and 
Calhoun  pointed  out,  be  remedied  except  by  a  national  paper 
currency  issued  directly,  or  through  a  bank  established  for 
the  purpose.^ 

The  conception  of  a  government  entrusted  with  the  task, 
not  only  of  raising  money  by  taxation,  to  provide  "  for  the 
common  defence  and  general  welfare,"  and  yet  wanting  the 
right  to  create  and  regulate  the  currency,  is  fallacious.  It 
would  have  been  disavowed  by  tlie  statesmen  who  framed 
the  Constitution,  and  will  not  be  entertained  by  any  one  who 
reflects  on  the  consequences  that  would  flow  from  its  adop- 
tion. The  nation  is  threatened  with  a  war ;  large  sums  are 
wanted  on  a  sudden  to  make  the  requisite  preparations ; 
taxes  are  laid  for  the  purpose,  but  it  requires  time  to  obtain 
the  benefit  of  them  ;  anticipation  is  indispensable.  With  the 
power  to  issue  money,  the  supply  can  at  once  be  had ;  if 
there  be  none,  loans  must  be  sought  from  individuals.  The 
progress  of  these  is  often  too  slow  for  the  exigency  ;  in  some 

1  See  Madison's  Message  of  Dec.  5,  1815,  recommending  a  national 
bank,  and  Mr.  Calhoun's  report,  as  the  chairman  of  the  committee  to 
which  so  much  of  the  message  was  referred.  Webster's  Works,  vol.  iii. 
pp.  346,  350. 


1256     THE  POWER  TO  REGULATE  COMMERCE 

situations  they  are  not  practicable  at  all.  Frequently  when 
they  are,  it  is  of  great  consequence  to  be  able  to  anticipate 
the  product  of  them  by  issuing  bills  of  credit  and  making 
them  a  legal  tender.  The  truth  and  force  of  this  illustra- 
tion, borrowed,  with  a  change  of  application,  from  the 
works  of  Hamilton,  will  be  admitted  by  all  who  recall  the 
lesson  taught  by  history,  that  the  country  could  not  have 
escaped  from  the  sudden  and  imminent  peril  to  which  it  was 
exposed  by  the  outbreak  of  the  Rebellion  but  for  the  power 
of  anticipating  its  resources,  and  obtaining  the  command  of 
the  money  market  by  issuing  a  currency  which  it  could  con- 
trol, and  that  could  not  be  controlled  by  others. 

It  has  been  said  that,  indispensable  as  a  well-ordered  finan- 
cial system  may  be  to  the  effectual  prosecution  of  hostilities 
and  the  collection  of  the  revenue,  it  is  not  related  to  the 
power  to  wage  war  or  the  power  to  tax,  and  cannot  justly 
be  said  to  form  any  part  of  the  authority  which  they  confer. 
In  considering  this  argument  we  should  recollect  that  every 
mandate  carries  with  it  the  right  to  use  all  necessary  means 
for  the  performance  of  the  duty  imposed  on  the  mandatary. 
This  is  true  of  a  private  agency,  and  applies  with  more  force 
to  a  government  endowed  with  sovereign  powers,  and  acting 
within  their  scope  as  the  representative  of  a  nation.  It  was 
on  such  grounds  that  the  right  to  acquire  territory  by  ces- 
sion was  deduced  under  Jefferson  from  the  treaty-making 
power,  and  gave  birth  to  the  right  to  govern  the  province  so 
acquired. 

Without  going  to  the  extent  of  holding  that  wherever 
a  duty  is  imposed  by  the  Constitution  it  also  gives  the 
means  of  carrying  it  into  effect,  we  may  be  of  opinion  that 
in  interpreting  any  instrument  each  clause  should  be  so 
construed  as  to  render  every  other  effectual.  If  the  clauses 
above  referred  to  do  not  involve  the  plenar}'^  control  over  the 
currency  which  is  essential  to  their  execution,  they  presup- 
pose its  existence,  and  give  rise  to  a  natural  presumption 
that  the  deficiency  is  supplied  in  some  other  paragraph  of  the 
Constitution. 

The  Constitution,  accordingly,  confers  another  power,  which 


I 

1 


INCLUDES  THE  CUERENCY. 


1257 


may  be  exercised  alike  in  peace  or  war,  and  would  seem  to 
involve  the  right  to  regulate  the  currency,  not  as  incidental 
or  ancillary,  but  as  a  part  of  its  essence  and  an  appropriate 
means  of  carr}'ing  it  into  effect.  By  the  third  clause  of  the 
seventh  section  of  the  First  Article  of  the  Constitution,  Con- 
gress are  authorized  to  "  regulate  commerce  with  foreign  na- 
tions, among  the  several  States,  and  with  the  Indian  tribes." 
So  vast  is  the  subject  of  this  power,  and  so  much  does  it 
comprise,  that  its  limits  cannot  well  be  defined  without  the 
risk  of  excluding  something  which  may  in  some  form,  or  at 
some  time,  deserve  to  be  included.^  It  is  given  in  the  largest 
and  most  liberal  terms,  without  restriction  or  limitation,  and 
has  been  interpreted  and  applied  with  adequate,  if  not  with 
equal,  liberality.  It  confessedly  and  directly  includes  traffic, 
' — the  sale  and  exchange  of  commodities,  —  but  also  extends 
to  the  means  by  which  traffic  is  carried  on.  Every  species 
of  commercial  intercourse  is  within  its  limits,  and  they  com- 
prehend trade  among  the  States  as  well  as  with  foreign 
nations.  It  is  complete  in  itself,  acknowledging  no  limita- 
tions other  than  those  which  the  Constitution  prescribes, 
and  does  not  stop  at  the  boundaries  of  the  States,  but  maybe 
exercised  within  as  well  as  without  their  jurisdictional  lines.^ 

These  principles  were  established  by  Chief-Justice  Mar- 
shall in  Gibbons  v.  Ogden  ;  ^  and  he  also  held  that  "  com- 
merce," as  the  word  is  used  in  the  Constitution,  is  a  unit, 
every  part  of  which  is  indicated  by  the  term,  and  that  its 
meaning  must  be  the  same  throughout  the  sentence,  in  the 
absence  of  some  plain,  intelligible  cause  of  change. 

Whether  the  power  to  regulate  commerce  comprehends 
each  of  the  isolated  transactions  of  which  trade  is  necessarily 
made  up,  and  would  justify  the  enactment  of  a  code  embrac- 
ing commercial  contracts  between  the  citizens  of  different 
States  and  with  other  countries,  is  a  point  which  has  not 
been  judicially  decided,  although  the   expediency  of  such 

1  See  The  United  States  v.  Marigold,  9  Howard,  560,  566. 

2  See  Pennsylvania  i\  Wheeling  Bridge  Co.,  13  Howard,  518  ;  18  Id. 
421,  431.     See  ante,  p.  491. 

8  9  Wheaton,  1,  189,  193.     See  ante,  pp.  108, 427,  432. 


1258  THE  POWER   TO  REGULATE  COMMERUiii 

legislation  would  seem  to  be  more  questionable  than  its  con- 
stitutionality. But  it  is  established  that  the  authority  of  the 
United  States  is  supreme  over  commerce  in  the  aggregate, 
and  the  means  by  which  the  operations  of  commerce  are 
prosecuted,  and  that  the  commercial  intercourse  of  the  States 
with  each  other  and  with  foreign  nations  must  be  in  due 
subordination  to  the  rules  which  may  from  time  to  time  be 
prescribed  by  Congress.'  As  ships  are  among  the  most  im- 
portant means  of  commerce,  the  legislative  power  of  the 
General  Government  has  been  largely  exercised  over  ship- 
ping for  the  purpose,  not  only  of  ascertaining  the  national 
character  of  the  vessels  sailing  under  the  flag  of  the  United 
States,  but  for  that  of  defining  the  relations  between  the 
master  and  crew,  and  preserving  discipline  and  good  order 
while  in  port  and  during  the  course  of  the  voyage.  As 
soon  as  —  and,  indeed,  for  some  purposes  before  —  a  ship  is 
launched  it  comes  within  the  jurisdiction  of  Congress,  who 
may  require  her  to  be  registered,  and  prescribe  the  mode  and 
place  in  which  the  registry  shall  be  made,  control  the  plan 
and  details  of  her  construction  and  equipment,  declare  the 
manner  in  which  the  contracts  of  the  crew  shall  be  drawn, 
enlarge  or  limit  the  authority  of  the  master  over  the  seamen, 
affix  penalties  for  desertion  and  enforce  them  summarily,  de- 
clare that  the  bill  of  sale,  or  instrument  by  which  the  title  is 
conveyed,  shall  be  recorded,  and,  finally,  prescribe  the  condi- 
tions under  which  every  vessel  that  leaves  the  shores  of  the 
United  States  must  sail,  or  retain  it  in  port  by  an  embargo  or 
suspension  of  commercial  intercourse  of  indefinite  duration. 
These  powers  have  in  various  forms  been  exercised  from  the 
outset  of  the  government ;  most  of  them  have  received  the 
sanction  of  the  courts ;  and  they  all  form  part  of  the  well- 
recognized  and  generally  conceded  authority  of  Congress.^ 

What  has  been  said  of  shipping  applies  in  a  greater  or  less 
degree  to  everything  which  constitutes  a  means  of  commer- 
cial intercourse,  or  on  which  the  operations  of  trade  depend 

T-  Corfield  V.  Coryell,  4  W.  C.  C.  371.     See  ante,  pp.  430,  434. 
2  See  ante,  pp.  108,  428,  429,  434. 


INCLUDES  THE  CURRENCY.  1259 

for  success  and  safety.  Commerce  cannot  be  well  or  safely 
prosecuted  without  signalling  the  dangers  that  lie  in  the  path 
of  the  mariner  by  buoys,  guiding  him  through  the  obscurity 
of  the  night  by  beacons,  facilitating  the  entrance  of  his  ves- 
sel into  port  by  the  removal  of  obstructions,  and  protecting 
it  while  there  by  piers  and  breakwaters ;  and  hence  the  ex- 
penditure of  money  for  these  purposes  is  confessedly  within 
the  implied  powers  of  Congress,  although  not  given  expressly 
nor  absolutely  necessary  for  the  regulation  of  trade.^  Of 
all  that  goes  to  make  up  the  sum,  or  contributes  to  the  suc- 
cessful prosecution  of  commerce,  nothing  is  so  important  as 
the  circulating  medium,  in  which  every  form  of  traffic  that 
rises  above  the  level  of  barter  must  be  carried  on,  without 
which  it  would  be  impossible  to  buy  or  sell,  to  remit  the 
capital  requisite  for  commercial  operations  to  the  points 
where  it  is  wanted,  or  bring  the  profits  of  successful  specu- 
lation home  in  safety.  All  commercial  transactions  pre- 
suppose some  standard  of  value,  to  which  the  value  of 
everything  else  may  be  referred ;  and  trade  cannot  be  pros- 
ecuted in  the  form  in  which  it  exists  among  civilized  nations 
in  the  absence  of  such  a  criterion,  nor  unless  it  is  sufficiently 
fixed  and  certain  to  answer  the  purpose  for  which  it  is  de- 
signed. Every  effort  to  give  regularity  to  trade  which  fails 
to  provide  for  this  capital  point  must  be  in  vain.  The  com- 
mercial legislation  of  Congress  has  hitherto  been  chiefly 
directed  to  navigation,  not  because  it  is  more,  but  because 
it  is  as  much  a  part  of  commerce  as  buying  and  selling.^  But 
the  laws  that  have  been  passed  to  secure  the  safe  passage  of 
the  ship  and  cargo  across  the  ocean  would  be  of  little  value 
if  there  were  no  established  currency  at  the  port  of  destina- 
tion for  which  the  merchant  can  stipulate  in  return  for  his 
goods. 

In  order  to  test  the  proposition  that  a  currency  in  some 
form  is  essential  to  trade,  and  that  the  power  of  Congress  to 
regulate  trade  cannot  be  exercised  effectuall}^  without  regu- 

1  Hamilton's  Works,  vol.  iii.  p.  189;  Webster's  Speech  on  the  Sub- 
^treasury,  Webster's  Works,  vol.  iv.  p.  463. 

2  Gibbons  v.  Ogden,  9  Wheaton,  1,  191.     See  ante,  p.  424. 

TOL.   11.  —  39 


1260  THE   POWER   TO  REGULATE  COMMERCE 

lating  the  circulating  medium,  let  it  be  supposed  that  the 
coinage  of  money  was  not  authorized  in  terms,  and  that  in 
consequence  of  the  unwillingness  of  the  legislature  to  exer- 
cise an  implied,  in  the  absence  of  all  express,  power  such  a 
state  of  things  had  arisen  in  this  country  as  prevailed  in 
England  during  the  reign  of  William  and  Mary,  when  no 
man  who  sold  could  be  sure  of  receiving  the  price  in  a  form 
that  would  enable  hira  to  go  into  the  market  and  buy ;  when 
no  man  who  bought  could  reasonably  hope  to  be  able  to  give 
anything  in  payment  which  the  vendor  would  be  willing  to 
receive ;  when  exchange  was  so  much  deranged  as  to  inter- 
pose an  almost  insuperable  obstacle  in  the  wa}^  of  trade  be- 
tween different  parts  of  the  kingdom  and  with  foreign 
countries  ;  when,  in  short,  it  might,  in  the  epigrammatic 
language  of  Macaulay,  "  be  doubted  whether  all  the  misery 
that  had  been  inflicted  on  the  English  people  in  a  quarter  of 
a  century  by  bad  kings,  bad  ministers,  bad  parliaments,  and 
bad  judges,  was  equal  to  the  misery  caused  in  a  single  year 
by  bad  crowns  and  bad  shillings."  If  under  circumstances 
such  as  these,  but  with  the  additional  aggravation  that,  from 
the  want  of  all  rule  on  the  subject,  there  was  not  only  no 
good  money,  but  no  legal  criterion  by  which  the  deficiency 
in  value  of  bad  money  could  be  estimated.  Congress  had  pro- 
posed to  remedy  the  universal  disorder  by  coining  money,  or 
establishing  a  uniform  circulating  medium  in  some  other  way, 
the  constitutionality  of  the  measure  would  in  all  probability 
have  passed  without  a  question,  in  view  not  only  of  its  neces- 
sity and  expediency,  but  of  the  manifest  impossibility  of  reg- 
ulating commerce  without  giving  certainty  and  stability  to  an 
element  which  is,  more  than  any  other,  essential  to  the  safety 
and  regularity  of  commercial  transactions.  In  the  language 
of  Webster,  "  The  regulation  of  money  is  not  so  much  an 
inference  from  the  commercial  power  conferred  on  Congress 
as  it  is  a  part  of  it.  Money  is  one  of  the  things  without 
which  in  modern  times  we  can  form  no  idea  of  commerce."  ^  ^ 

1  Webster's  Works,  vol:  iv.  pp.  339,  463.     See  the  United  States  v. 
Marigold,  9  Howard,  560,  566. 


INCLUDES  THE  CURRENCY. 


1261 


The  impracticability  of  regulating  commerce  without  pro- 
viding for  the  regulation  of  the  currency  is  even  more  clearly 
apparent  with  reference  to  trade  among  the  States  than  when 
that  with  foreign  nations  is  alone  in  question.  Exchange  is 
a  necessary  means  of  trade  between  places  at  a  distance  from 
each  other,  and  cannot  undergo  any  considerable  amount  of 
fluctuation  without  disturbing  the  relations  of  deV)tor  and 
creditor,  and  destroying  the  confidence  which  lies  at  the 
foundation  of  commercial  intercourse.  Accordingly,  ex- 
change, and  the  bills  and  drafts  by  which  the  operations  of 
exchange  are  effected,  must  be  presumed  to  be  subject  to  the 
constitutional  power  of  Congress.^  As  exchange  is  the  sale 
of  an  amount  due  in  one  place  for  value  received  in  some 
other,  or,  as  it  was  comprehensively  defined  by  Webster,  "  a 
transfer  of  funds,"  it  must  necessarily  be  attended  with  in- 
convenience and  loss,  unless  the  local  currency  is  the  same 
in  both,  or  can  be  reduced  to  a  common  standard  ;  and  every 
branch  of  internal  commerce  was  repeatedly  disordered  dur- 
ing the  fifty  years  preceding  the  Civil  War  from  the  want 
of  the  uniform  circulating  medium  which  the  United  States 
finally  supplied.  The  bank-notes  which  had  supplanted  spe- 
cie might  pass  current  in  the  place  where  they  were  issued, 
but  ceased  to  be  money  and  became  articles  of  merchandise 
a  few  leagues  farther  on  ;  and  the  inconvenience  which  this 
occasioned  was  felt  by  every  one  who  had  debts  to  pay  or 
purchases  to  make  in  another  part  of  the  Union.^  The  need 
of  guarding  against  these  evils  was  one  of  the  grounds  on 
which  the  constitutionality  of  a  national  bank  was  vindicated 
by  Hamilton  ;  and  the  argument  applies  with  equal  if  not 
greater  force  to  the  laws  making  treasury  notes  a  legal  ten- 
der and  the  basis  of  a  uniform  currency  throughout  the 
United  States.  For  if  Congress  could,  as  the  first  Secretary 
of  the  Treasury  held,  incorporate  a  bank  with  a  view  to  the 
creation  of  a  convenient  medium  of  exchange  between  the 
.States  and  preventing  the  displacement  of  the  metals,  they 


1  Hamilton's  Works,  vol.  iii.  pp.  204,  213. 

2  Webster's  Works,  vol.  iv.  p.  335.     See  ante,  p.  277. 


1262    THE  POWER  TO  REGULATE  THE  CURRENCY 

may  obviously  accomplish  the  same  object  directly,  instead 
of  acting  through  the  channel  of  a  corporation.^  "  Money  is 
the  very  hinge  on  which  commerce  turns.  And  this  does 
not  mean  merely  gold  and  silver.  Many  other  things  have 
served  to  the  purpose  with  different  degrees  of  utility.  Paper 
has  been  extensively  employed.  It  cannot,  therefore,  be  ad- 
mitted, with  the  Attornej^-General,  that  the  regulation  of  trade 
between  the  States,  as  it  concerns  the  medium  of  circulation 
and  exchange,  ought  to  be  considered  as  confined  to  coin. 
It  is  even  supposable  that  the  whole  or  greater  part  of  the 
coin  of  the  country  might  be  carried  out  of  it."  ^  What  was 
thus  foreshadowed,  subsequently,  as  we  all  know,  occurred. 
By  a  natural  growth,  and  through  State  legislation  rather 
than  with  the  sanction  of  the  General  Government,  bank- 
notes virtually  supplanted  coin ;  and  the  power  to  regulate 
commerce,  being  necessarily  co-extensive  with  the  medium 
in  which  commercial  operations  are  performed,  and  enlarging 
as  that  varies,  must  be  exercised  with  reference  to  the  species 
of  circulation  with  which  the  channels  of  trade  are  actually 
filled.  "  If  Congress  has  the  power  to  regulate  commerce,  it 
must  have  a  control  over  that  money,  Avhatever  it  may  be,  by 
which  commerce  is  actually  carried  on.  Whether  that  money 
be  coin  or  paper,  —  if  in  fact  it  has  become  the  actual  agent 
or  instrument  in  the  performance  of  commercial  transactions, 
—  it  necessarily  thereby  becomes  subject  to  the  control  and 
regulation  of  Congress."  ^ 

This  view  was  enforced  with  unanswerable  logic  in  Web- 
ster's speech  on  the  currency  during  the  suspension  of  specie 
payment  in  1837.  As  he  there  observed,  in  language  bor- 
rowed from  Mr.  Dallas's  report  as  Secretary  of  the  Treasury, 
*'  whenever  the  emergency  occurs  that  demands  a  change  of 
system,  it  seems  necessarily  to  follow  that  the  authority 
which  was  alone  competent  to  establish  the  national  coin  is 
alone  competent  to  create  the  national  substitute."    If  further 

1  See  Madison's  Messages  to  Congress,  Dec.  5,  1815,  Dec.  3,  1816. 

2  Hamilton's  Works,  vol.  iii.  p.  213. 

8  Mr.  Webster's  Speech  on  the  Currency,  Sept.  28,  1837,  Webster's 
Works,  vol.  iv.  pp.  324,  339. 


RELATES  TO  PAPER  AS  WELL  AS  COIN. 


1263 


[authority  is  wanting  on  a  proposition  which  may  be  thought 
self-evident,  it  may  be  found,  as  I  have  elsewhere  shown,  in 
the  concurrent  testimony  of  the  statesmen  who  were  best 
able  to  express  such  an  opinion  on  such  a  subject.^ 

1  See  anlej  p.  1249.  "  This  power  over  the  coinage  is  not  the  strongest 
nor  the  broadest  ground  on  which  to  place  the  duty  of  Congress.  There  is 
another  power  granted  to  Congress,  which  seems  to  me  to  apply  to  this  case 
directly  and  irresistibly ;  and  that  is  the  commercial  power.  The  Constitu- 
tion declares  that  Congress  shall  have  power  to  regulate  commerce,  not  only 
with  foreign  nations,  but  between  the  States.  This  is  a  full  and  complete 
grant,  and  must  include  authority  over  everything  which  is  part  of  com- 
merce or  essential  to  commerce.  And  is  not  money  essential  to  com- 
merce ?  No  man  in  his  senses  can  deny  that ;  and  it  is  equally  clear  that 
whatever  paper  is  put  forth  with  intent  to  circulate  as  currency,  or  to  be 
used  as  money,  immediately  affects  commerce.  Bank-notes,  in  a  strict 
and  technical  sense,  are  not,  indeed,  money,  but  in  a  general  sense,  and 
often  in  a  legal  sense,  they  are  money.  They  are  substantially  money, 
because  they  perform  the  functions  of  money.  They  are  not,  like  bills  of 
exchange,  or  common  promissory  notes,  mere  proofs  or  evidences  of  debt, 
but  are  treated  as  money  in  the  general  transactions  of  society.  If  re- 
ceipts be  given  for  them,  they  are  given  as  for  money.  They  pass  under 
a  legacy,  or  other  form  of  gift,  as  money.  And  this  character  of  bank- 
notes was  as  well  known  and  understood  at  the  time  of  the  adoption  of 
the  Constitution  as  it  is  now.  The  law  both  of  England  and  America 
regarded  them  as  money  in  the  sense  above  expressed.  If  Congress, 
then,  has  power  to  regulate  commerce,  it  must  have  a  control  over  that 
money,  whatever  it  may  be,  by  which  commerce  is  actually  carried  on. 
Whether  that  money  be  coin  or  paper,  or  however  it  has  acquired  the 
character  of  money  or  currency,  if  in  fact  it  has  become  an  actual  agent 
or  instrument  in  the  performance  of  commercial  transactions,  it  essen- 
tially then  becomes  subject  to  the  regulation  and  control  of  Congress. 
The  regulation  of  money  is  not  so  much  an  inference  from  the  commer- 
cial power  conferred  on  Congress  as  it  is  a  part  of  it.  Money  is  one  of 
the  things  witliout  which  in  modern  times  we  can  form  no  practical  idea 
of  commerce.  It  is  embraced,  therefore,  necessarily  in  the  terms  of  the 
Constitution."     Webster's  Works,  vol.  iv.  p.  338. 

It  is  proper  to  add  that  on  a  former  occasion  Webster  as  explicitly 
declared:  "  There  is  no  legal  tender,  and  there  can  be  no  legal  tender,  in 
this  country  under  the  authority  of  this  government,  or  of  any  other,  but 
gold  and  silver,  the  coinage  of  our  own  mints,  or  foreign  coins  at  rates 
regulated  by  Congress."  Webster's  Works,  vol.  iv.  p.  271.  But  it  may 
still  be  thought  that  in  maintaining  the  right  of  Congress  to  create  and 
regulate  a  national  currency  consisting  mainly  of  paper,  he  laid  down  a 
premise  which  naturally,  if  not  necessarily,  leads  to  the  conclusion  which 
he  so  emphatically  repudiated. 


1264  THE  POWER  TO  COIN  MONEY 

It  has,  however,  been  contended  that  if  we  may  reason 
from  the  duties  imposed  by  the  Constitution  to  the  means 
requisite  for  their  fulfilment  when  the  Constitution  is  silent, 
this  ceases  to  be  true  when  a  particular  method  is  pointed 
out ;  and  it  must  then  be  pursued  to  the  exclusion  of  every 
other.  Viewed  in  this  asj^ect,  the  power  to  coin  money  ceases 
to  be  a  mere  authority,  and  becomes  a  prohibition.  In  say- 
ing expressly  that  a  currency  may  be  created  of  a  particular 
kind,  it  says  impliedly  —  if  this  argument  is  sound  —  that  a 
currency  shall  not  be  created  of  any  other  kind.  Read  by 
itself,  the  power  to  regulate  commerce  might  authorize  the 
regulation  of  the  paper  money  through  which  the  operations 
of  trade  are  carried  on,  by  means  analogous  to  those  used  in 
other  countries  and  appropriate  to  the  end.  The  able  opin- 
ion of  Judge  Sharswood,  in  Borie  v.  Trott,^  concedes  this 
much,  and  it  will  hardly  be  denied  by  any  candid  mind  ;  but 
it  has  been  said  that  inasmuch  as  a  specific  power  to  coin 
money  and  declare  the  value  thereof  is  expressly  conferred, 
it  must  be  regarded  as  limiting  the  unqualified  power  over 
commerce.  This  seems  to  me  to  be  the  very  latitude  of 
strict  construction.  The  enumerated  powers  may  not  be 
read  together  when  the  object  is  to  show  that  the  scope  and 
object  of  the  instrument  require  a  liberal  interpretation,  or 
that  a  particular  power  must  fail  unless  an  enlarged  view  is 
taken  of  another  power.  They  may  be  read  together  for  the 
purpose  of  limiting  one  affirmative  clause  by  the  language  of 
another  which  is  in  terms  enabling,  and  contains  no  prohib- 
itory words.  Such  a  rule  would  hardly  be  applied  in  the 
construction  of  any  other  instrument.  When,  indeed,  a 
general  grant  is  followed  by  an  enumeration,  the  latter  may 
control  and  exclude  everything  that  is  not  specifically  set 
down.  But  it  is  equally  true  that  when  authority  is  con- 
ferred in  general  terms,  without  exception,  reservation,  or 
limitation,  no  part  of  it  should  be  withheld  on  a  mere  con- 
jecture or  inference.  Such  is  the  case  actually  before  us  ; 
because  the  power  to  regulate  the  currency  is  confessedly  as 

1  5  Philad.  366,  395. 


ENABLING,  NOT  PROHIBITORY. 


1265 


much  a  part  of  the  power  to  regulate  commerce  as  the  power 
to  regulate  navigation,  and  incidentally  thereto  the  navigable 
waters  of  the  United  States ;  and  as  Chief-Justice  Marshall 
observed,  nothing  should  be  withdrawn  by  implication  from 
the  operation  of  a  grant  which  in  terms  conveys  the  whole. 
If  the  maxim  expressio  unius  exclusio  est  alterius  were  more 
nearly  in  point  than  it  would  seem  to  be,  care  should  still  be 
used  in  applying  it  to  an  instrument  like  the  Constitution  of 
the  United  States.  Where  parties  are  dealing  at  arms'  length, 
each  presumably  intending  to  get  as  much  and  give  as  little 
as  he  can,  it  may  be  just  to  infer  that  words  of  designation 
or  indication  are  also  words  of  limitation,  and  exclude  every- 
thing which  they  do  not  sanction  ;  although  even  here  the 
rule  is  not  universal.  But  when  the  object  of  the  instru- 
ment is  to  confer  a  power  for  beneficial  purposes,  when  it 
has  its  origin  solely  in  the  will  of  the  grantor,  and  his  good 
is  the  end  in  view,  the  designation  of  a  specific  means  will 
not  preclude  a  recourse  to  others.  This  is  especially  true 
when  the  grant  is  made  by  a  people,  and  designed  to  create 
a  representative  government,  chosen  by  them  and  exercising 
its  authority  for  their  benefit;  because  the  subject  of  the  gift 
would  be  useless  if  retained,  and  must  be  placed  in  trust  in 
order  to  be  valuable  to  the  givers.^  The  inclination  should, 
therefore,  be  towards  a  liberal  rather  than  a  narrow  interpre- 
tation, especially  when  it  is  remembered  that  the  Constitution 
was  intended,  like  Magna  Charta,  "  to  live  and  take  effect  in 
all  successions  of  ages  forever,"  ^  and  consequently  "  to  be 
adapted  to  the  various  crises  of  human  affairs."  "  To  have 
prescribed  the  means  by  which  the  government  should  in  all 
future  time  execute  its  powers,  would  have  been  an  unwise 
attempt  to  provide  by  immutable  rules  for  exigencies  which 
if  foreseen  at  all  must  have  been  foreseen  but  dimly,  and 
which  can  best  be  provided  for  as  they  occur."  ^ 

All  that  can  safely  be  inferred  as  regards  such  an  instru- 
.  ment  from  an  authorization  to  use  a  particular  means  is  not 

1  See  McCulloch  v.  Maryland,  4  Wheaton,  316,  415. 

2  2  Institutes,  2. 

»  McCulloch  V.  The  State  of  Maryland,  4  Wheaton,  316-415. 


1266      THE  GRANT   OF   A   SPECIFIC  POWER   DOES  NOT 

that  other  means  are  forbidden,  but  that  this  should,  if  the 
occasion  requires  it,  be  used.  Prima  facie,  affirmative  words 
enable  ;  they  cannot,  unless  imperative,  prohibit.  If,  indeed, 
the  express  authority  be  the  only  one,  and  there  is  no  express 
or  implied  power  elsewhere,  it  must  be  pursued,  and  every 
step  beyond  its  limits  will  be  void.  But  it  will  not  create  a 
disability  by  implication,  or  take  from  other  powers  the  scope 
which  they  would  have  if  standing  alone.  If,  therefore, 
Congress  could  legally  establish  a  currency,  and  decide  upon 
its  nature,  by  virtue  of  their  power  to  regulate  commerce, 
wage  war,  and  levy  taxes,  they  may  do  so  notwithstanding 
the  express  authority  conferred  •  upon  them  to  coin  money. 
The  powers  of  government  are  in  a  great  degree  co-exten- 
sive ;  they  cannot  be  divided  by  sharp  and  arbitrary  lines ; 
and  much  that  belongs  ordinarily  to  one  may  be  found  at 
some  time  and  for  other  purposes  equally  pertinent  to  an- 
other. Hence,  while  the  grant  of  a  specific  power  will  not 
warrant  acts  not  appropriate  to  it,  and  appertaining  to  a 
power  of  a  different  description,  still,  when  a  power  is  given 
absolutely,  no  part  of  the  authority  necessary  to  its  execu- 
tion should  be  presumed  to  have  been  withheld  because  it  is 
associated  with  another  power  partially  covering  the  same 
ground,  and  limited  in  terms  or  as  to  the  means  of  carrying 
it  into  effect.  Some  governmental  functions,  as,  for  instance, 
that  of  "  establishing  post-offices  and  post-roads,"  conduce 
directly  to  the  general  good,  which  is  the  ultimate  end  of 
all ;  others,  like  the  power  of  taxation,  are  useful  only  as 
furnishing  the  means  by  which  the  operations  of  government 
must  be  performed.  But  the  greater  number  hold  an  inter- 
mediate position,  and  are  primary  or  subsidiary  means  or 
ends,  according  to  circumstances.  "  Many  particular  means 
are  involved  in  the  general  means  necessary  to  carry  into 
effect  the  powers  granted  by  the  Constitution;  and  when 
this  is  the  case  the  general  means  becomes  the  end,  and  the 
smaller  objects  the  means."  Even,  therefore,  if  Congress 
can  only  use  one  means  —  that  of  coinage  —  when  the  crea- 
tion of  a  currency  is  the  sole  as  well  as  the  immediate  object, 
it  would  not  follow  that  no  other  means  could  be  resorted  to 


PRECLUDE  A  RECOURSE  TO  OTHER  MEANS.    1267 


[when  the  object  is  to  create  a  currency,  not  for  its  own  sake, 
but  with  a  view  to  the  execution  of  other  powers  that  must 
otherwise  fail. 

This  conclusion  derives  additional  strength  from  the  reflec- 
tion that  when  the  government  was  established,  the  currency 
consisted  almost  exclusively  of  specie.  The  States  were  for- 
bidden to  issue  bills  of  credit ;  and  there  were  probably  few 
persons  who  anticipated  that  bank-notes  would,  through  State 
legislation,  become  the  chief  circulating  medium  of  the  coun- 
try, and  the  only  one  at  the  command  either  of  individuals  or 
the  government  during  the  periodical  suspensions  of  specie 
payments.  And  the  framers  of  the  Constitution  may  be 
supposed  to  have  intended  that  so  long  as  the  state  of  things 
^hich  prevailed  in  their  time  remained  unchanged,  the  legal 
character  of  money  should  belong  exclusively  to  coin.  But 
they  must  at  the  same  time,  as  men  who  had  undergone  the 
vicissitudes  of  the  Revolution,  have  been  aware  that  the  cur- 
rency should,  like  other  things,  be  adapted  to  circumstances, 
and  that  the  safety  of  the  country  might,  at  some  period  in  the 
unknown  future,  demand  measures  which  would  not  be  advis- 
able in  ordinary  times.  They  knew  that  the  loss  occasioned 
by  continental  money  was  the  price  paid  for  the  Declaration 
of  Independence,  and  that  the  future  might  involve  contin- 
gencies as  perilous,  and  requiring  measures  not  less  extreme. 
Hence,  in  all  probability,  a  determination  on  their  part  not 
to  carry  the  express  power  of  Congress  over  the  currency 
beyond  the  coinage  of  specie,  and  yet  leave  the  implied 
power  to  create  and  issue  money  in  any  form  that  the  per- 
formance of  the  functions  of  the  government  might  ultimately 
demand  in  full  force  and  unembarrassed  by  restrictions.  If 
such  was  their  design,  the  result  has  shown  it  to  be  eminently 
wise,  because  an  authority  confined  to  specie  would  be  inad- 
equate in  a  country  where,  from  causes  beyond  the  control 
of  the  General  Government,  bank-notes  have  long  been  the 
chief,  and  sometimes  the  only,  circulating  medium,  and  will 
not,  as  experience  has  shown,  prevent  the  paper  currency 
from  varying  so  much  in  value  as  to  throw  a  formidable 
obstacle   in  the  way  of  the  collection  of  the  revenue  and 


1268     THE   GRANT  OF  A  SPECIFIC  POWER  DOES  NOT 

the  course  of  exchange  between  different  sections  of  the 
country. 

Aside  from  argument,  it  would  seem  to  be  settled  on  au- 
thority that  the  grant  of  an  express  power  in  an  instrument 
like  the  Constitution  does  not  necessarily  preclude  the  exer- 
cise of  a  more  general  implied  power  of  a  like  nature,  and 
including  the  express  power  within  its  limits.  The  power  of 
the  government  of  the  United  States  to  inflict  punishment 
for  crime  is,  as  we  have  seen,  limited  in  terms  to  treason,  to 
piracies,  and  felonies  committed  on  the  high  seas,  to  offences 
against  the  law  of  nations,  and  to  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States ;  and  yet  there  can 
be  no  doubt  that  every  violation  of  the  laws  of  the  United 
States  may  be  made  criminal  by  Congress.^  In  like  manner, 
although  the  Senate  and  House  of  Representatives  may,  by 
the  express  words  of  the  Constitution,  "  punish  a  member  for 
disorderly  conduct,"  they  are  not  thereby  precluded  from 
punishing  contempts  committed  by  third  persons.^  In  the 
United  States  v.  Marigold  the  express  power  given  in  the 
Constitution  "  to  provide  for  the  punishment  of  counterfeiting 
the  securities  and  current  coin  of  the  United  States  "  was 
held  not  to  preclude  Congress  from  punishing  the  offence 
of  uttering  counterfeit  coin,  or  that  of  counterfeiting  the 
coin  of  foreign  countries ;  and  in  McCulloch  v.  The  State 
of  Maryland,^  Chief- Justice  Marshall  said  that  he  would  be 
taxed  with  insanity  who  should  contend  that  because  the 
oath  which  might  be  exacted  —  that  of  fidelity  to  the  Con- 
stitution—  was  prescribed,  the  legislature  could  not  super- 
add such  other  oath  of  office  as  its  wisdom  might  suggest. 
It  cannot  be  held  consistently  with  these  authorities  that 
the  grant  of  a  limited  power  will  restrain  or  prohibit  the 
use  of  a  larger  authority  conferred  in  another  part  of  the 
instrument  by  implication. 

It  has,  indeed,  been  said  that  if  trade  cannot  be  success- 

1  McCulloch  V.  The  State  of  Maryland,  4  Wheaton,  316,  416;  United 
States  y.  Marigold,  9  Howard,  560,  568.     See  ante,  pp.  116,  1148. 

2  Anderson  v.  Dunn,  6  Wheaton,  204. 
«  4  Wheaton,  416. 


PRECLUDE  A  RECOURSE  TO  OTHER  MEANS. 


1269 


fully  prosecuted  among  the  different  States  without  some 
standard  of  value,  and  the  creation  of  a  currency  is  a  first 
and  indispensable  step  towards  the  regulation  of  trade,  still 
the  power  to  issue  money  is  an  attribute  of  sovereignty, 
and  the  government  of  the  United  States  does  not  possess 
any  sovereign  attribute  which  has  not  been  conferred  in 
terms.  But  this  argument  overlooks  that  the  federal  gov- 
ernment is,  within  the  circle  of  its  functions  and  with  regard 
to  the  objects  intrusted  to  its  care,  as  fully  and  completely 
sovereign  as  any  government  of  ancient  or  modern  times. ^ 
Were  not  such  the  case,  it  would  not  answer  the  end  for 
which  it  was  created,  or  be  a  fit  representative  of  the  people 
of  the  United  States  in  their  sovereign  and  national  capacity. 
The  difference  between  it  and  other  governments  is  not  in 
the  degree  of  its  sovereignty,  —  which  would  place  the  Amer- 
ican people,  who  can  speak  only  through  its  voice,  in  a  posi- 
tion of  inferiority  among  the  nations  of  the  earth,  —  but  that 
the  authority  which  it  possesses  is  limited  to  certain  objects, 
and  cannot  be  exercised  over  anything  beyond  their  sphere. 
Although  some  powers  have  been  withheld  from  its  grasp 
and  bestowed  elsewhere,  those  which  it  wields  are  not  in 
any  just  sense  of  the  word  limited,  and  on  the  contrary  ex- 
tend as  far  as  may  be  necessary  for  the  accomplishment  of 
the  purposes  for  which  they  were  given.  This  is  not  only 
implied  from  the  whole  tenor  of  the  Constitution,  but  directly 
asserted  in  the  clauses  authorizing  Congress  to  pass  all  laws 
necessary  and  proper  for  the  execution  of  the  powers  of  the 
government,  and  declaring  the  Constitution  and  the  laws 
made  in  pursuance  thereof  to  be  the  supreme  law  of  the 
land,  notwithstanding  anything  to  the  contrary  in  the  Con- 
stitutions or  laws  of  the  States.^  The  validity  of  an  issue  of 
money,  or  of  any  other  measure  which  the  legislature  may 
adopt,  depends  not  so  much  on  the  letter  of  the  Constitution 

1  McCulloch  V.  The  State  of  Maryland,  4  Wheaton,  316,  403;  Hamil- 
ton's Works,  vol.  iii.  182. 

2  Ableman  v.  Booth,  21  Howard,  506,  517;  The  Bank  of  Commerce 
V.  New  York  City,  2  Black,  620,  632.  See  ante,  p.  99;  Hamilton's 
Works,  vol.  iii.  182. 


1270  THE  ENUMERATED  POWERS   SOVEREIGN 

as  on  whether  it  is  a  fit  and  necessary  means  for  the  perform- 
ance of  the  duties  which  the  Constitution  enjoins. 

The  principle  was  stated  and  applied  with  equal  force  and 
clearness  in  Hamilton's  response,  while  Secretary  of  the 
Treasury,  in  obedience  to  the  call  made  by  Washington  on  the 
members  of  his  cabinet  for  a  statement  of  their  views  with 
regard  to  the  constitutionality  of  the  Bank  of  the  United 
States :  "  The  specified  powers  of  Congress  are  in  their  na- 
ture sovereign  ;  it  is  incident  to  sovereign  power  to  erect 
corporations  ;  and  therefore  Congress  have  a  right,  within 
the  sphere  and  in  relation  to  the  objects  of  their  power,  to 
erect  corporations."  This  demonstration  shows  that  the 
power  to  make  all  necessary  and  proper  laws  for  the  execu- 
tion of  the  powers  of  the  government  would  have  resulted 
from  the  spirit  of  the  Constitution  if  it  had  not  been  con- 
ferred in  terms  ;  and  it  seems  to  be  a  necessary  corollary  that 
Congress  may  issue  money  in  any  form  which  the  occasion 
requires  ;  because  this  power  is  not  only  an  attribute  of  sov- 
ereignty, but  an  attribute  which  bears  a  direct  relation  to 
the  powers  specifically  conferred  by  the  Constitution. 

No  one  who  reads  this  admirable  state  paper  with  the 
attention  which  it  merits  can  be  surprised  that  Washington 
should  have  deemed  it  a  conclusive  answer  to  the  reasons 
adduced  on  the  other  side ;  and  the  course  of  legislation  and 
decision  has  since  amply  vindicated  the  wisdom  of  the  views 
which  it  presents,  and  shown  that  they  are  the  only  ones  on 
which  the  government  can  be  carried  on  and  made  effectual 
for  the  purposes  for  which  it  was  established. 

The  argument  may  be  summed  up  as  follows  :  The  cur- 
rency had  changed  its  character  since  the  Constitution  was 
established,  and  was  running  through  different  channels  and 
with  an  augmented  volume.  It  had  thus  escaped  from  the 
control  of  Congress,  and  passed  into  the  hands  of  the  States, 
— or  rather  of  the  corporations  which  the  local  legislatures  had 
chartered,  but  were  unable  to  direct.  The  bank-notes  issued 
by  these  institutions  took  the  place  of  gold  and  silver,  which 
became  rare,  and  might  be  withdrawn.  The  power  to  coin 
money  and  regulate  the  value  thereof  was  obviously  inade- 


AS   TO   ALL   WITHIN  THEIR   SCOPE. 


1271 


quate  to  the  altered  state  of  things.^  The  money  which  it 
supplied  was  not  the  money  in  general  use.  It  might  be 
uniform,  but  this  did  not  prevent  a  great  and  injurious  fluc- 
tuation of  the  paper  currency.  Two  different  courses  were 
open  to  Congress.  They  might  stand  fast  within  the  limits 
of  the  coinage  power,  and  by  so  doing  relinquish  an  impor- 
tant function,  and  one  necessary  for  the  performance  of 
every  other ;  or  they  might,  under  the  general  power  over 
commerce,  regulate  the  currency  through  which  trade  was 
actually  carried  on.  They  chose  the  latter  alternative  ;  and 
history  will,  I  think,  declare  that  their  decision  was  in  ac- 
cordance with  the  Constitution,  and  the  only  one  that  could 
be  made  in  view  of  the  great  and  difficult  task  of  conducting 
the  people  of  the  United  States  through  a  civil  war  unpar- 
alleled in  magnitude  and  in  the  demand  made  upon  the 
national  resources.^ 


1  See  ante,  p.  268. 

2  "  There  had  been  an  extraordinary  revolution  in  the  currency  of  the 
country.  By  a  sort  of  under-current,  the  power  of  Congress  to  regulate 
the  money  of  the  country  had  caved  in,  and  upon  its  ruin  had  sprung  up 
those  institutions  which  now  exercised  the  right  of  making  money  in  and 
for  the  United  States ;  for  gold  and  silver  are  not  the  only  money,  but 
whatever  is  the  medium  of  purchase  and  sale,  in  which  bank-paper  alone 
was  now  employed,  and  had  therefore  become  the  money  of  the  country. 
A  change  of  great  and  wonderful  import  has  taken  place,  which  divests 
you  of  your  rights  and  turns  you  back  to  the  condition  of  the  Revolution- 
ary War,  in  which  every  State  issued  bills  of  credit,  which  were  made  a 
legal  tender,  and  were  of  various  values.  We  have  in  lieu  of  gold  and 
silver  a  paper  medium,  unequally  but  generally  depreciated,  which  affects 
the  trade  and  industry  of  the  nation,  which  paralyzes  the  national  arm, 
which  sullies  the  faith,  both  public  and  private,  of  the  United  States. 
According  to  estimation,  there  were  in  circulation  within  the  United 
States  two  hundred  millions  of  dollars  of  bank-notes,  credits,  and  bank- 
paper  in  one  shape  or  other.  Supposing  thirty  millions  of  these  to  be  in 
possession  of  the  banks  themselves,  there  were  perhaps  one  hundred  and 
seventy  millions  actually  in  circulation,  or  on  which  they  draw  interest, 
while  there  were  not,  according  to  estimation,  in  the  vaults  of  all  the 
banks  more  than  fifteen  millions  in  specie."  See  Calhoun's  Speech,  Feb. 
26,  1816,  in  support  of  the  Bill  for  the  Establishment  of  the  Bank  of  the 
United  States,  and  his  Report  as  Chairman  of  the  Committee  to  which  that 
measure  was  referred,  as  cited  in  Webster's  Works,  vol.  iii.  pp.  348,  461. 


LECTURE  LVIII. 

The  Legal  Tender  Acts  approved  by  the  Secretary  of  the  Treasury 
and  passed  by  Congress.  —  So  much  of  this  Legislation  as  consisted 
in  issuing  United  States  Notes,  and  suppressing  the  Notes  of  the 
State  Banks,  sustained  by  the  Supreme  Court ;  but  rendering  Paper 
Dollars  a  Legal  Tender  held  Unconstitutional  by  a  Majority  of  the 
Judges.  —  Reasons  for  this  Decision  as  assigned  by  the  Chief- Justice. 
—  The  words  Necessary  and  Proper,  like  the  Tenth  Amendment,  are 
at  once  Admonitory  and  Directory.  — An  implied  Power  must  be  ap- 
propriate, and  consistent  with  the  Spirit  of  the  Constitution.  —  In  his 
opinion,  the  Legal  Tender  Acts  not  only  impaired  the  Obligation  of 
Contracts,  but  operated  as  a  Deprivation  without  due  Process  of  Law.  — 
The  Answer  to  this  view  is,  that  Contracts  for  the  payment  of  Money 
are  presumed  to  be  made  in  Subordination  to  the  Power  of  Congress 
over  the  Currency,  and  with  notice  that  it  may  be  exercised. 

The  defects  of  a  financial  sj'^stem  where  there  was  no  cen- 
tral or  controlling  power,  and  where  the  banks  of  each  State 
vied  with  those  of  every  other  in  issuing  an  inflated  currency 
which  they  frequently  could  not  redeem,  were  too  obvious  to 
escape  the  attention  of  the  eminent  men  who  during  the  first 
half  of  the  century  stood  near  the  helm  of  government ;  and 
Madison,  Dallas,  Calhoun,  and  Webster  in  turn  insisted  on 
the  necessity  of  remedial  legislation. ^  Cogent  as  were  the 
reasons  which  they  assigned  for  rendering  the  currency  uni- 
form, and  adequate  in  other  respects  to  the  public  wants, 
they  might  not  have  moved  Congress  but  for  the  logic  of 
events.     The  American  people,  politically,  are  disposed  to 

^  See  ante,  p.  1249;  also  The  Metropolitan  Bank  v.  Van  Dyck,  27 
N.  Y.  431-433. 


THE  LEGAL  TENDER  ACTS. 


1273 


follow  the  beaten  ways ;  and  the  powerful  influence  of  the 
State  banks  tended  against  any  change  that  would  disturb 
their  possession  of  the  field.  The  lesson  which  financial  dis- 
aster had  failed  to  teach  was  learned  from  the  Civil  War, 
which  made  the  necessity  for  reform  so  plain  that  the  only 
doubt  among  persons  who  were  well  affected  to  the  govern- 
ment was  as  to  the  possibility  of  devising  a  plan  which  would  be 
at  once  adequate  to  the  occasion  and  consistent  with  the  limits 
set  by  the  Constitution.  The  right  to  create  a  paper-currency 
by  the  emission  of  bills  of  credit  was  generally  conceded  ; 
but  there  was  a  divergence  of  opinion  as  to  the  measures 
which  should  be  taken  to  fix  and  regulate  their  value  when 
uttered.  Great  as  was  the  urgency,  all  agreed  that  the  laws 
made  for  this  purpose  must,  as  the  enabling  and  restrictive 
clause  sanctioning  ancillary  legislation  implies,  be  necessary 
and  proper,  that  is  related  to  the  end,  and  such  that,  unless 
they  or  some  analogous  measure  were  adopted,  it  could  not 
be  effectually  attained  ;  but  it  was  as  generally  conceded  that 
in  considering  what  was  necessary,  regard  should  be  had  to 
the  existing  state  of  things. 

No  statesman  would  have  attempted  to  create  a  currency 
in  the  face  of  the  Civil  War  simply  through  the  power  to 
fcoin  money  and  declare  the  value  thereof,  because  specie 
disappeared  faster  than  it  could  be  issued.  Nor  would  he 
have  recurred  to  the  expedient  of  a  single  national  bank, 
acting  independently  of  the  government,  and  able  to  con- 
tract or  expand  the  circulation  at  will.  It  was  obviously 
necessary  to  devise  some  new  method  which  would  promptly 
replenish  the  exhausted  treasury,  fill  the  channels  of  trade, 
and  enable  the  government  to  meet  the  enormous  expendi- 
ture requisite  for  the  suppression  of  the  insurrection  which 
had  established  a  de  facto  government  in  the  Southern  States, 
and  was  menacing  Washington.  After  mature  consideration, 
Congress  passed  the  first  of  the  series  of  measures  known  as 
the  Legal  Tender  Acts.  It  was  approved  by  the  President, 
Feb.  25,  1862,  and  became  the  basis  of  a  currency  which  not 
only  carried  the  country  through  the  Civil  War,  but  gave  it 
on  the  return  of  peace  a  financial  strength  and  stability  that 


1274  A  NATIONAL  PAPEPw  CURRENCY  CREATED 

had  been  unknown  for  more  than  half  a  century.^  The  bill 
was  passed  with  the  concurrence  of  the  Secretary  of  the 
Treasury,  Mr.  Chase,  who  not  only  advocated  the  emission 
of  treasury  notes,  but  informed  the  committee  of  the  House 
of  Representatives  that  it  was  necessary  to  make  them  a 
legal  tender.  This  last-named  feature  was  opposed  at  the 
time  as  an  abuse  of  the  discretion  which  must,  even  under 
our  system,  be  accorded  to  the  legislature,  and  became  the 
theme  of  an  unsparing  criticism,  in  which  Mr.  Chase  joined 
when  subsequently  elevated  to  the  chief-justiceship. 

The  new  system  was  generally  sustained  by  the  State  tri- 
bunals, not  merely  because  they  regarded  it  as  constitutional, 
but  from  a  justifiable  wish  not  to  discredit  a  measure  which 
had  been  adopted  at  a  critical  period  as  essential  to  the  pres- 
ervation of  the  republic.  When,  however,  the  case  came 
before  the  Supreme  Court  of  the  United  States  in  Hepburn 
V.  Griswold,2  ^|^g  result  disappointed  the  expectation  that  the 
Chief- Justice  would  uphold  the  statute  which  he  had  ap- 
proved as  Secretary  of  the  Treasury.  Two  questions  were 
mooted  at  the  bar  and  on  the  bench, —  Did  the  act  fall  within 
the  scope  of  the  express  or  implied  powers  of  Congress  ? 
Was  it  constitutionally  applicable  to  pre-existing  contracts  ? 
On  both  heads  judgment  was  given  by  a  divided  court  in 
favor  of  the  creditor's  demand  for  specie. 

Such  a  conclusion  was  the  more  singular  because  the 
judges  agreed  on  so  many  points  that  it  might  htive  been 
thought  they  would  have  no  difficulty  in  arriving  at  the 
same  conclusion  with  regard  to  all.  It  was  not  denied  that 
the  paper  currency  issued  by  banking  companies  chartered 
by  the  States  was  madequate  in  peace,  and  had  broken  down 
at  the  approach  of  war.^  Specie  payments  were  suspended, 
and  it  was  not  possible  for  the  government  or  for  individu- 
als to  make  purchases  or  pay  their  debts  in  coin.*  It  was 
therefore  necessary ;  and  on  this  point  the  Chief-Justice  con- 

1  See  ante,  p.  267.  2  g  Wallace,  603. 

8  See  Mr.  Webster's  Speech  on  the  Currency,  of  Sept.  28,  1837,  Web- 
ster's Works,  vol.  IV.  pp.  327,  329. 

*  James  G.  Blaine,  Twenty  Years  in  Congress,  pp.  407,  409-425. 


AND  STATE  BANK-NOTES   SUPPRESSED.  1275 

curred  with  the  minority,  for  the  United  States  to  follow  the 
counsel  which  had  been  given  by  Hamilton,  by  Madison,  by 
Calhoun,  and  by  Webster,^  and  regulate  the  paper  currency 
in  which  business  had  long  been  carried  on,  and  was  practi- 
cally the  only  one  at  command  of  the  government  or  of 
individuals.^  The  bills  of  credit  emitted  for  this  end,  in  the 
form  of  treasury  or  United  States  notes,  could  not  find  their 
way  readily  into  the  channels  of  trade  without  the  aid  of 
corporations  chartered  by  Congress,  and  following  a  uniform 
rule.  The  need  was  so  urgent,  and  the  method  so  much 
within  the  scope  of  the  Constitution,  that  agreeably  to  the 
case  of  Veazie  v,  Fenno,^  Congress  might  not  only  create 
national  banks,  but  lay  an  impost  of  ten  per  cent  on  the  cir- 
culation of  the  State  banks,  which  operated  as  a  penalty,  and 
was  intended  to  drive  them  from  the  field.*     To  this  extent 

^  See  Hamilton's  Works,  vol.  iii.  p.  213 ;  Webster's  Works,  vol.  iv. 
pp.  343,  348. 

2  See  Mr.  Webster's  Speech  in  the  Senate  on  the  disorder  of  the  cur- 
rency during  the  prolonged  suspension  of  specie  payment  in  1837,  Web- 
ster's Works,  vol.  iv.  pp.  327,  329. 

8  8  Wallace,  533.     See  ante,  p.  269. 

*  '*  In  Veazie  Bank  v.  Fenno  [8  Wallace,  533],  decided  at  the  pres- 
ent term,  this  court  held,  after  full  consideration,  that  it  was  the  privi- 
lege of  Congress  to  furnish  to  the  country  the  currency  to  be  used  by 
it  in  the  transaction  of  business,  whether  this  was  done  by  means  of  coin, 
of  the  notes  of  the  United  States,  or  of  banks  created  by  Congress ;  and 
that  as  a  means  of  making  this  power  of  Congress  efBcient,  that  body 
could  make  tliis  currency  exclusive  by  taxing  out  of  existence  any  cur- 
rency authorized  by  the  States.  It  was  said,  ^  that  having,  in  the  exer- 
cise of  undoubted  constitutional  power,  undertaken  to  provide  a  currency 
for  the  whole  country,  it  cannot  be  questioned  that  Congress  may  consti- 
tutionally secure  the  benefit  of  it  to  the  people  by  appropriate  means.' 
Which  is  the  more  appropriate  and  effectual  means  of  making  the  cur- 
rency established  by  Congress  useful,  acceptable,  perfect,  —  the  taxing  of 
all  other  currency  out  of  existence,  or  giving  to  that  furnished  by  the  gov- 
ernment the  quality  of  lawful  tender  for  debts?  The  latter  is  a  means  di- 
rectly conducive  to  the  end  to  be  attained,  —  a  means  which  attains  the  end 
more  promptly  and  more  perfectly  than  any  other  means  can  do.  The 
former  is  a  remote  and  uncertain  means  in  its  effect,  and  is  liable  to  the 
serious  objection  that  it  interferes  with  State  legislation.  If  Congress  can, 
however,  under  its  implied  power,  protect  and  foster  this  currency  by  such 
VOL.  II.  —  40 


1276         LEGAL  TENDER  ACTS  DECLARED 

the  new  system  was,  in  the  opinion  of  the  Chief  Justice  as 
well  as  of  his  brethren,  so  clearly  constitutional  that  the  ex- 
press as  well  as  the  implied  powers  of  the  government  might 
be  exercised  to  establish  it  and  supersede  the  old.  But  he  de- 
clined to  go  farther,  or  admit  that  Congress  could  impart  the 
quality  of  legal  tender  to  the  bills  of  credit  which  were  to 
take  the  place  of  coin.  The  reasons  assigned  for  this  con- 
clusion were  substantially  as  follows :  The  Constitution  is  an 
express  grant  of  general  powers,  coupled  with  a  further  grant 
of  such  incidental  and  auxiliary  powers  as  may  be  required 
for  the  exercise  of  the  powers  expressly  granted.  A  large, 
if  not  the  largest,  part  of  the  functions  of  the  government  is 
performed  through  the  powers  thus  implied.  The  extension 
of  power  by  implication  was,  however,  regarded  with  appre- 
hension by  the  men  who  framed  and  by  the  people  who 
adopted  the  Constitution.  This  appears  from  the  terms  in 
which  the  incidental  and  auxiliary  powers  are  granted.  They 
were  all  included  under  the  general  head  of  "  power  to  make 
all  laws  necessary  and  proper  for  carrying  into  execution  the 
powers  expressly  granted  to  Congress,  or  vested  by  the  Con- 
stitution in  the  government,  or  in  any  of  its  departments  or 
officers."  The  same  apprehension  is  equally  apparent  in  the 
Tenth  Article  of  the  Amendments,  which  declares  that  "  the 
powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  or  to  the  people." 

The  court  did  not  mean  to  say  that  either  of  these  consti- 
tutional provisions  is  to  be  taken  as  restricting  the  exercise 
of  any  power  legitimately  derived  from  one  of  the  enumer- 
ated or  express  powers.  The  object  of  the  first  was  clearly 
to  exclude  all  doubt  as  to  the  existence  of  implied  powers ; 
and  the  words  "necessary  and  proper"  were  intended  to 

means  as  destructive  taxation  on  State  bank  circulation,  it  seems  strange 
indeed  if  it  cannot  adopt  the  more  appropriate  and  the  more  effectual 
means  of  declaring  these  notes  of  its  own  issue,  for  the  redemption  of 
which  its  faith  is  pledged,  a  lawful  tender  in  payment  of  debts."  See 
Hepburn  v.  Griswold,  8  Wallace,  603,  636,  dissenting  opinion  of  Miller, 
Swayne,  and  Davis,  JJ. 


UNCONSTITUTIONAL  IN  HEPBURN  V.   GRISWOLD.  1277 

have  a  sense  "  at  once  admonitory  and  directory,"  and  to 
require  that  the  means  used  to  execute  an  express  power 
should  be  appropriate  to  the  end.^ 

The  second  provision  was  intended  to  have  a  like  admoni- 
tory and  directory  sense,  and  to  restrain  the  limited  govern- 
ment established  under  the  Constitution  from  the  exercise  of 
powers  not  clearly  delegated  or  derived  by  a  just  inference 
from  those  which  were.  It  could  not  be  maintained  that 
there  was  in  the  Constitution  any  express  authority  to  make 
any  form  of  paper  currency  a  legal  tender  in  payment  of 
debts.  It  was  necessary,  therefore,  to  inquire  whether  this 
could  be  done  in  the  exercise  of  an  implied  power. 

The  rule  for  determining  whether  a  legislative  enactment 
can  be  supported  on  the  ground  of  an  implied  power  was  au- 
thoritatively laid  down  by  Marshall,  C.-J.,  in  McCulloch  v. 
The  Bank  of  Mary  land. ^  It  was  established  under  this  deci- 
sion that  to  warrant  the  exercise  of  an  implied  power,  it  must 
be  an  appropriate  means  to  an  end  authorized  by  the  Consti- 
tution, and  be  consistent  with  its  letter  and  spirijb.  Did  the 
law  making  notes  of  the  United  States  a  legal  tender  for 
debts  contracted  prior  to  its  enactment  answer  these  require- 
ments ?  It  could  not  be  doubted  that  the  power  to  establish 
a  standard  of  value  by  which  all  other  values  should  be 
tested  was,  from  its  nature  and  necessity,  a  governmental 
power.  In  the  United  States  it  was,  so  far  as  regarded  the 
precious  metals,  vested  in  Congress  by  the  power  to  coin 
money.  Could  a  power  to  impart  these  qualities  to  notes, 
or  promises  to  pay  money  when  offered  in  discharge  of  pre- 
existing debts,  be  deduced  from  the  coinage  power,  or  any 
other  power,  expressly  given  ?  It  certainly  was  not  the  same 
power  as  the  power  to  coin  money,  nor  was  it  in  any  just 
sense  an  appropriate  means  to  the  exercise  of  that  power,  or 
of  the  power  to  regulate  the  value  of  coined  money  or  for- 
eign coins.  Nor  was  the  power  to  make  notes  a  legal  tender 
the  same  as  the  power  to  emit  bills  of  credit  to  be  used  as 
currency.     Under  the  Articles  of  Confederation  Congress 

^    ^  2  Story  on  the  Constitution,  p.  140,  par.  1253. 
2  4  Wheaton,  421. 


1278  AN  IMPLIED   POWER  MUST  BE  CONSISTENT 

were  expressly  clothed  with  the  latter  power,  and  yet  it  had 
never  been  alleged  that  they  possessed  the  former.  The 
power  to  create  a  currency  by  issuing  bills  of  credit  and 
treasury  notes  was  established  under  the  recent  course  of 
decision  ;  ^  but  it  did  not  follow  that  creditors  could  be 
compelled  to  accept  the  promises  of  the  government  as  pay- 
ment. It  had,  however,  been  contended  that  the  power  to 
make  treasury  notes  a  legal  tender  for  all  debts  was  an  ap- 
propriate means  to  the  power  to  carry  on  war,  to  the  power 
to  regulate  commerce,  and  the  power  to  borrow  money.  It 
could  not  be  denied  that  the  power  to  issue  paper  money 
might  facilitate  the  prosecution  of  a  war ;  but  if  this  was  a 
sufficient  ground  for  compelling  creditors  to  accept  the  notes 
of  the  United  States  in  payment,  such  an  authority  might  be 
derived  from  every  power  which  involved  the  use  of  money, 
—  from  the  power  to  establish  post-offices  and  post-roads, 
from  the  power  to  establish  courts  for  the  administration  of 
justice,  and  from  the  power  to  send  embassies  and  provide 
for  their  support  and  maintenance.  The  argument  proved 
too  much,  and  carried  the  doctrine  of  implied  powers  beyond 
its  appropriate  limit.  It  maintained  that  whatever  in  any 
degree  promoted  an  end  within  the  scope  of  a  general  power 
might  be  done  in  the  exercise  of  an  implied  power,  and  that 
it  was  for  Congress,  and  not  for  the  court,  to  determine 
whether  a  means  was  necessary  and  appropriate  to  the  end. 
Such  a  doctrine  would  completely  change  the  nature  of  the 
American  government,  by  converting  it  into  a  government 
of  unlimited  powers,  and  obliterate  the  criterion  which  Mar- 
shall had  prescribed  for  determining  whether  a  legislative  act 
was  in  accordance  with  the  Constitution.  Among  appropri- 
ate means  the  legislature  had  an  unrestricted  choice ;  but 
means  which  were  not  appropriate  could  not  acquire  that 
character  from  an  act  of  Congress.  The  evils  incident  to 
giving  a  paper  currency  a  forced  circulation,  by  making  it 

^  See  the  Veazie  Bank  v.  Fenno,  8  Wallace,  533,  548;  Dooley  v. 
Smith,  13  Id.  604;  National  Bank  v.  The  United  States,  101  U.  S.  1,  5; 
Juilliard  v.  Greenman,  110  Id.  421,  446. 


WITH  THE  SPIRIT  OP  THE  CONSTITUTION.  1279 

obligatory  on  creditors,  were  manifest,  and  the  court  were 
unable  to  believe  that  such  an  expedient  was  an  appropriate 
and  plainly  adapted  means  for  the  execution  of  the  power  to 
declare  and  carry  on  war.  These  considerations  were  equally 
applicable  to  the  power  to  regulate  commerce  and  the  power 
to  borrow  money.  Both  involved  the  use  of  money  by  the 
government  and  by  the  people  ;  but  the  power  of  issuing 
notes,  and  making  them  a  legal  tender  in  payment  of  pre- 
existing debts,  was  not  appropriate  to  either. 

There  was  another  view  which  the  court  regarded  as  de- 
cisive. Agreeably  to  the  rule  as  stated  by  Chief-Justice 
Marshall,  the  power  must  not  only  be  appropriate,  but  con- 
sistent with  the  letter  and  spirit  of  the  Constitution.  Was 
it  consistent  with  that  spirit  to  authorize  the  payment  of 
debts  in  a  currency  unlike  that  in  which  they  were  con- 
tracted ?  Among  the  great  cardinal  purposes  of  the  instru- 
ment, none  was  more  conspicuous,  or  more  venerable,  than 
the  establishment  of  justice.  It  was  accordingly  provided 
that  no  State  should  pass  any  law  impairing  the  obligation 
of  contracts.  It  was  true  that  this  prohibition  did  not  apply 
in  terms  to  the  government  of  the  United  States.  Congress 
had  express  power  to  enact  bankrupt  laws,  and  the  court  did 
not  say  that  a  law  made  in  the  execution  of  any  other  ex- 
press power  would  be  held  unconstitutional  because  it  inci- 
dentally impaired  the  obligation  of  a  contract.  But  they 
thought  it  clear  that  those  v/ho  framed  and  those  who 
adopted  the  Constitution  intended  that  the  spirit  of  the 
express  prohibition  to  the  States  should  pervade  the  entire 
body  of  legislation,  and  the  justice  which  the  Constitution 
was  ordained  to  establish  was  not  thought  by  them  to  be 
compatible  with  legislation  of  an  opposite  tendency.  A  law 
not  made  in  pursuance  of  an  express  power  which  neces- 
sarily and  in  its  direct  operation  impaired  the  obligation  of 
contracts  must  therefore  be  regarded  as  at  variance  with 
the  spirit  of  the  Constitution. 

The  Fifth  Amendment,  that  private  property  shall  not  be 
taken  for  public  use  without  compensation,  must  be  consid- 
ered in  the  same  connection.     This  provision  was  akin  to 


1280       DO  THE  LEGAL  TENDER  ACTS  CAUSE 

that  forbidding  laws  impairing  the  obligation  of  contracts, 
but  was  unlike  it  in  being  addressed  solely  to  the  General 
Government.  It  did  not  in  terms  forbid  legislation  appro- 
priating the  property  of  one  class  or  individual  to  the  use  of 
another ;  yet  if  such  property  could  not  be  taken  for  the  ben- 
efit of  all,  without  compensation,  it  was  diflQcult  to  under- 
stand how  it  could  be  so  taken  for  the  benefit  of  a  part, 
consistently  with  the  spirit  of  the  prohibition.  But  there  was 
another  clause  in  the  same  amendment  which  could  not  have 
its  full  effect  unless  construed  as  a  direct  prohibition  of  the 
law  under  consideration.  It  was  the  declaration  that  no 
person  shall  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law.  A  law  contravening  this  provision  would 
manifestly  be  invalid.  The  only  question,  therefore,  was 
whether  an  act  which  compelled  persons  who  had  stipulated 
for  payment  in  gold  or  silver  money  to  accept  payment  in  a 
currency  of  inferior  value  operated  as  a  deprivation  without 
due  course  of  law.  It  was  clear  that  whatever  might  be  the 
operation  of  such  an  act,  due  process  of  law  made  no  part  of 
it.  Did  it  deprive  any  person  of  property  ?  A  very  large 
proportion  of  the  property  of  civilized  men  exists  in  the  form 
of  contracts.  These  contracts  are  generally  for  the  payment 
of  money ;  and  such  a  contract,  before  the  act  in  question, 
was  an  undertaking  to  pay  the  amount  in  gold  or  silver 
coin.  It  could  not  be  denied  that  the  holders  of  such  obli- 
gations were  as  fully  entitled  to  the  benefit  of  the  Fifth 
Amendment  as  the  holders  of  any  other  description  of  prop- 
erty. It  was,  however,  said  that  no  form  of  property  was 
protected  from  legislation  which  incidentally  impaired  its 
value.  The  legislature  might,  for  instance,  charter  a  new 
bank,  or  railroad  company,  although  the  effect  was  that  the 
value  of  the  stock  of  existing  corporations  was  thereb}'^  im- 
paired. The  supposed  analogy  was,  however,  fallacious.  In 
one  case  the  injury  was  purely  contingent  and  incidental ; 
in  the  other  it  was  direct  and  inevitable.  No  one  would 
contend  that  an  act  enforcing  the  acceptance  of  seventy-five 
acres  of  land  in  satisfaction  for  a  contract  to  convey  one  hun- 
dred did  not  come  within  the  prohibition  against  an  arbitrary 


A  DEPRIVATION  WITHOUT  DUB  PROCESS  ?  1281 

appropriation  of  property.  There  was  no  solid  distinction 
between  such  an  act  and  an  act  compelling  a  creditor  to  ac- 
cept less  or  other  money  than  that  stipulated  for  in  the  bond. 
It  followed  that  an  act  making  mere  promises  to  pay  dollars 
a  legal  tender  in  payment  of  debts  previously  contracted  is 
not  a  means  appropriate,  plainly  adapted,  really  calculated 
to  carry  into  effect  any  express  power  vested  in  Congress ; 
and  is,  on  the  contrary,  not  only  inconsistent  with  the  spirit 
of  the  Constitution,  but  prohibited  in  terms. 

Miller,  Svvayne,  and  Davis,  J  J.,  dissented  from  the  judg- 
ment on  the  ground  that  the  act  in  question  was  a  necessary 
and  proper  means  of  executing  the  express  powers  of  the 
government,  and  directly  related  to  the  power  to  wage  war 
and  suppress  rebellion. 

The  objection  taken  in  Hepburn  v,  Griswold  to  the  Legal 
Tender  Acts,  on  the  ground  of  their  effect  on  contracts,  is 
questionable,  and  has  been  overruled.  The  chief-justice  did 
not  deny  that  laws  made  under  the  express  powers  of  the 
government  may  impair  pre-existing  obligations,  or  discharge 
them  altogether.  So  much  has  to  be  conceded  in  view  of 
the  power  to  declare  war,  of  the  power  to  establish  a  uniform 
system  of  bankruptcy,  of  the  power  to  coin  money  and  de- 
clare the  value  thereof.  But  he  contended  that  the  implied 
powers  of  the  government  follow  a  different  rule,  and  must 
not  be  such  in  nature  or  effect  as  will  impair  the  obligation  of 
contracts,  or  vary  the  mode  of  payment  stipulated  for  by  the 
creditor.  Such  a  distinction  introduces  a  restraint  on  Con- 
gress which  the  framers  of  the  Constitution  studiously  omit- 
ted. Contracts  are  regulated  by  the  law  of  the  State  where 
they  are  made,  or  the  law  of  the  State  where  they  are  to  be 
performed,  and  cannot  be  varied  or  controlled  by  Congress. 
But  the  powers  of  the  United  States  may  be  carried  into  exe- 
cution even  when  the  effect  is  to  impair  the  obligation  of  a 
contract.^  This  is  as  true  of  the  General  Government  as  it 
would  be  of  the  States  if  there  were  no  prohibitory  words. 

1  Evans  v.  Eaton,  1  Peters,  C.  Ct.  R.  322;  Shollenberger  v.  Brinton, 
52  Pa.,  9,  70;  The  Legal  Tender  Cases,  12  Wallace,  457,  550. 


1282  CONGRESS   MAY   INCIDENTALLY   ''IMPAIR" 

To  hold  that  a  measure  designed  for  great  national  ends 
must  fail  because  it  incidentally  affects  an  agreement  be- 
tween individuals  is  contrary  to  the  fundamental  conception 
of  government,  and  subversive  of  the  end  for  which  it  is 
established.^  The  powers  of  Congress  are  fewer  in  number 
than  those  possessed  by  Parliament ;  but  within  the  scope  of 
its  powers,  and  when  no  prohibition  intervenes,  the  govern- 
ment of  the  United  States  is  not  less  supreme  than  the  Eng- 
lish government.2  No  one  contends  that  the  operation  of  a 
certificate  in  bankruptcy  is  limited  to  debts  incurred  subse- 
quently to  the  passage  of  the  statute,  or  that  a  debt  contracted 
sixty  years  ago  may  not  be  paid  in  current  coin,  although 
the  gold  dollar  contains  six  per  cent  less  gold,  and  the  sil- 
ver dollar  is  worth  twenty  per  cent  less  than  it  was  then. 
And  yet  the  obligation  is  impaired  retroactively  in  the  one 
instance,  and  discharged  altogether  in  the  other.  So  an 
agreement  in  New  York  to  open  a  credit  in  London  will  fail 
if  Congress  declare  war  against  Great  Britain.  These,  it 
may  be  said,  are  express  powers,  and  may  therefore  be  exer- 
cised whether  they  do  or  do  not  affect  prior  contracts.  But 
an  implied  power  which  is  necessary  and  proper  for  the  ex- 
ecution of  an  express  power  is  as  much  a  part  of  the  prin- 
cipal power  as  if  it  was  conferred  in  terms,  and  therefore 
not  less  sovereign.^    A  statute,  consequently,  may  be  valid 

1  See  The  Legal  Tender  Cases,  457,  565. 

2  See  ante,  pp.  99,  575;  Hamilton's  Works,  vol.  iii.  p.  182. 

*  Such  was  the  view  taken  in  Shollenberger  v.  Brinton,  52  Pa.  9,  70; 
and  it  is  sustained  by  the  language  held  in  The  Legal  Tender  Cases,  12 
Wallace,  549,  and  the  general  course  of  decision.  *'  Nor  can  it  be  truly 
asserted  that  Congress  may  not,  by  its  action,  indirectly  impair  the  obli- 
gation of  contracts,  if  by  the  expression  be  meant  rendering  contracts 
fruitless,  or  partially  fruitless.  Directly  it  may,  confessedly,  by  passing 
a  bankrupt  act,  embracing  past  as  well  as  future  transactions.  This 
is  obliterating  contracts  entirely.  So  it  may  relieve  parties  from  their 
apparent  obligations  indirectly,  in  a  multitude  of  ways.  It  may  de- 
clare war,  or,  even  in  peace,  pass  non-intercourse  acts,  or  direct  an 
embargo.  All  such  measures  may  and  must  operate  seriously  upon 
existing  contracts;  and  may  not  merely  hinder,  but  relieve  the  parties 
to  such  contracts  entirely  from  performance.     It  is,  then,  clear  that 


IN  THE   EXERCISE   OF   AN  IMPLIED   POWER.  1283 

ilthough  the  power  by  virtue  of  which  it  is  enacted  is  not 
enumerated  in  the  Constitution,  and  its  tendency  or  effect 
is  to  impair  the  obhgation  of  a  contract.    The  embargo  which 
Tefferson  promoted   suspended,  if  it  did  not  dissolve,  con- 
tracts of  charter  or  affreightment,  and  was  characterized  by 
its  opponents  as  a  destruction,  rather  than  a  regulation,  of 
jommerce ;  and  yet  the  power  of  Congress   to   lay  an   em- 
>argo  is  as  well  established  as  that  it  results  by  implication 
;om  the  commercial  power.^     The  consignor  may  be  ready 
forward  the  goods,  or  the  owner  of  the  vessel  to  receive 
them,  but  neither  can  treat  the  other  as  in  default  for  a  fail- 
ure to  comply  with  his  part  of  the  agreement.    So  the  United 

the  powers  of  Congress  may  be  exerted,  though  the  effect  of  such  ex- 
ertion may  be  in  one  case  to  annul,  and  in  other  cases  to  impair,  the 
obligation  of  contracts.  And  it  is  no  sufficient  answer  to  this  to  say  it  is 
true  only  when  the  powers  exerted  were  expressly  granted.  There  is  no 
gi'ound  for  such  distinction.  It  has  no  warrant  in  the  Constitution,  or 
in  any  of  the  decisions  of  this  court.  We  are  accustomed  to  speak,  for 
mere  convenience,  of  the  express  and  implied  powers  conferred  upon 
Congress.  But  in  fact  the  auxiliary  powers,  —  those  necessary  and  ap- 
propriate to  the  execution  of  other  powers  singly  described, — are  as 
expressly  given  as  is  the  power  to  declare  war,  or  to  establish  uniform 
laws  on  the  subject  of  bankruptcy.  They  are  not  catalogued;  no  list  of 
them  is  made ;  but  they  are  grouped  in  the  last  clause  of  section  eight 
of  the  First  Article,  and  granted  in  the  same  words  in  which  all  other 
powers  are  granted  to  Congress.  And  this  court  has  recognized  no  such 
distinction  as  Is  now  attempted.  An  embargo  suspends  many  contracts, 
and  renders  performance  of  others  impossible,  yet  the  power  to  enforce 
it  has  been  declared  constitutional.  Gibbons  v.  Ogden,  9  Wheaton,  1. 
The  power  to  enact  a  law  directing  an  embargo  is  one  of  the  auxiliary 
powers,  existing  only  because  appropriate  in  time  of  peace  to  regulate 
commerce,  or  appropriate  to  carrying  on  war.  Though  not  conferred 
as  a  substantive  power,  it  has  not  been  thought  to  be  in  conflict  with  the 
Constitution,  because  it  impairs  indirectly  the  obligation  of  contracts. 
That  discovery  calls  for  a  new  reading  of  the  Constitution. 

"  If,  then,  the  Legal  Tender  Acts  were  justly  chargeable  with  impairing 
contract  obligations,  they  would  not  for  that  reason  be  forbidden,  unless 
a  different  rule  is  to  be  applied  to  them  from  that  which  has  hitherto 
prevailed  in  the  construction  of  other  powers  granted  by  the  fundamental 
law."     The  Legal  Tender  Cases,  12  Wallace,  457,  565. 

^  Gibbons  v.  Ogden,  9  Wheaton,  1 ;  Legal  Tender  Cases,  12  Wallace, 
457,  550.     See  antCj  p.  429. 


1284  BEGULATION   MAY  INCIDENTALLY  IMPAIR 

States  ordinarily  have  no  control  over  the  sale  or  delivery  of 
merchandise  ;  but  it  would  have  been  a  good  defence  during 
the  Civil  War  for  the  breach  of  a  contract  for  the  exporta- 
tion of  anthracite,  that  it  tended  to  supply  blockade-runners 
with  a  fuel  which  could  be  used  without  smoke,  and  had  been 
forbidden  by  Congress,  or  by  the  President  as  commander- 
in-chief.  In  like  manner,  while  the  power  to  draft  is  not 
given  expressly,  and  is  a  mere  inference  from  the  power  to 
raise  and  equip  armies,  it  necessarily  relieves  the  conscript 
from  every  obligation  which  he  may  have  incurred  to  do 
work,  or  render  personal  services,  that  cannot  be  fulfilled 
consistently  with  the  duty  which  he  owes  to  the  government ; 
and  yet  this  was  not  made  a  ground  of  objection  in  any 
of  the  elaborate  forensic  or  judicial  arguments  against  the 
power.i 

The  allegation  that  Congress  cannot  vary  the  standard  of 
the  dollar,  or  render  treasury  notes  a  legal  tender  consist- 
ently with  the  provision  that  no  person  shall  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law,  would 
seem  to  be  equally  untenable.  Sacred  as  is  a  man's  right  to 
his  goods,  his  land,  and,  above  all,  to  his  home,  it  will  not  be 
allowed  to  stand  in  the  way  of  measures  that  are  within 
the  powers  of  government,  and  necessary  for  the  public 
welfare.  His  property  cannot  be  taken  from  him,  or  sub- 
jected to  a  servitude  or  easement,  without  payment;^  but 
acts  which  are  directed  to  ulterior  and  beneficial  objects 
are  not  necessarily  unconstitutional  because  they  incident- 
ally impair  rights  of  property.^  This  view  was  carried  in 
Pennsylvania  to  the  extent  of  holding  that  an  owner  was 
not  entitled  to  compensation  for  the  construction  of  a  steam 
railway  before  his  door,  and  the  resulting  smoke,  noise,  and 

1  Kneedler  v.  Lane,  ante,  p.  1213. 

2  See  ante,  pp.  414,  418;  Rigney  v.  Chicago,  102  111.  79. 

8  See  ante,  pp.  385,  390,  419:  Shrunk  v.  The  Schuylkill  Navigation  Co., 
14  S.  &  R.  71,  83;  Chicago  v.  Union  Building  Association,  102  111.  380; 
Proprietors  of  Locks  v.  N.  &  L.  R.  R.  Co.,  10  Cushing,  385.  See  an 
interesting  article  on  this  subject  in  the  American  Law  Register  of 
January,  1888,  from  the  pen  of  R.  Mason  Lisle. 


WITHOUT  CAUSING  A  DEPRIVATION. 


1285 


cinders,  nor  for  a  change  of  grade  which  rendered  his 
house  inaccessible.^  These  decisions  may  have  been  erro- 
neous, because  the  loss  was  occasioned  by  specific  acts, 
which  would  have  been  a  ground  for  the  recovery  of  dam- 
ages as  between  individuals,  and  constituted  a  deprivation 
without  due  process  of  law ;  but  the  principle  is  none  the 
less  indisputable  where  the  circumstances  admit  of  its  ap- 
plication. A  charter  is  confessedly  a  contract  which  the 
States  may  not  impair  ;  but  a  State  legislature  may  charter 
a  brewing  company  one  year  and  forbid  the  manufacture  and 
sale  of  beer  the  next,  although  the  buildings  and  machinery 
which  the  company  have  erected,  and  the  liquor  which  they 
have  manufactured,  are  thereby  rendered  useless  and  un- 
marketable. Such  an  act  of  assembly  renders  the  charter 
nugatory,  but  does  not,  agreeably  to  the  Supreme  Court  of 
the  United  States,  cause  the  deprivation  which  the  Four- 
teenth Amendment  forbids,  or  contravene  the  prohibition  of 
laws  impairing  the  obligation  of  contracts,  because  it  is  an 
exercise  of  the  police  power  operating  on  all  persons,  whether 
natural  or  artificial,  and  inflicts  no  greater  hardship  on 
companies  than  on  individuals.^ 

These  considerations  apply  with  greater  force  in  favor  of 
the  United  States,  which  have  no  control  over  property  or 
contracts  save  through  the  exercise  of  powers  that  were  con- 
ferred for  national  objects.  Congress  can  no  more  than  a 
State  legislature  sanction  acts  which  amount  to  a  nuisance 
where  the  purpose  is  not  public,  and  is  not  attended  with 
compensation ;  ^  but  property  may  be  rendered  less  valuable 
without  "deprivation"  in  the  constitutional  sense  of  the 
term,  whether  the  deterioration  is  caused  by  the  govern- 
ment or  results  from  the  exercise  of  the  rights  of  owner- 
ship on   the   adjacent  land.*     If  an  act  of  Congress  does 

1  See  ante,  pp.  385,  422. 

2  See  ante,  pp.  608, 773;  Muglerv.  Kansas,  123  U.  S.  623,  634,  669,  670. 
8  See  ante,  pp.  413,  756;  The  Baltimore  &  Potomac  R.  R.  Co.  v.  The 

Fifth  Baptist  Church,  108  U.  S.  317. 

*  See  ante,  p.  397;  Chicago  v.  The  Union  Building  Association,  102 
111.  380. 


1286  PECUNIARY  OBLIGATIONS  PAYABLE  IN 

not  fall  within  one  or  more  of  the  enumerated  powers,  it  is 
necessarily  void,  and  we  need  look  no  farther.  If  it  does,  it 
may  be  valid,  although  it  incidentally  affects  private  rights. 

Another  and  conclusive  answer  is,  that  since  pecuniary 
obligations  are  payable  in  whatever  money  is  lawful,  when 
the  time  for  fulfilment  arrives,  they  cannot  be  impaired  by  a 
statute  passed  by  Congress  within  the  limits  of  their  control 
over  the  currency,  and  ascertaining  the  monetary  units,  or 
dollars,  in  which  payment  is  to  be  made.  This  is  confessedl}'" 
true  of  coin,  and  not  less  true  of  bills  of  credit,  if  they  corae 
under  the  power  to  issue  money  and  regulate  its  value. ^ 

1  See  ante,  p.  1237 ;  Schoenberger  v.  Watts,  5  Phila.  51 ;  The  Legal 
Tender  Cases,  12  Wallace,  547. 

"  The  argument  assumes  two  things :  first,  that  the  acts  do,  in  effect, 
impair  the  obligation  of  contracts;  and  second,  that  Congress  is  pro- 
hibited from  taking  any  action  which  may  indirectly  have  that  effect. 
Neither  of  these  assumptions  can  be  accepted.  It  is  true  that  under 
the  acts  a  debtor,  who  became  such  before  they  were  passed,  may  dis- 
charge his  debt  with  the  notes  authorized  by  them,  and  the  creditor  is 
compellable  to  receive  such  notes  in  discharge  of  his  claim. 

'*  But  whether  the  obligation  of  the  contract  is  thereby  weakened  can 
be  determined  only  after  considering  what  was  the  contract  obligation. 
It  was  not  a  duty  to  pay  gold  or  silver,  or  the  kind  of  money  recognized 
by  law  at  the  time  when  the  contract  was  made,  nor  was  it  a  duty  to  pay 
money  of  equal  intrinsic  value  in  the  market.  (We  speak  now  of  con- 
tracts to  pay  money  generally,  not  contracts  to  pay  some  specifically 
defined  species  of  money.)  The  expectation  of  the  creditor  and  the 
anticipation  of  the  debtor  may  have  been  that  the  contract  would  be 
discharged  by  the  payment  of  coined  metals ;  but  neither  the  expectation 
of  one  party  to  the  contract  respecting  its  fruits,  nor  tlie  anticipation  of 
the  other,  constitutes  its  obligation.  There  is  a  well-recognized  distinc- 
tion between  the  expectation  of  the  parties  to  a  contract  and  the  duty 
imposed  by  it.  Apsden  v.  Austin,  5  A.  &  E.  n.  s.  671 ;  Dunn  v.  Sayles, 
Id.  685 ;  Coffin  v.  Landis,  10  Wright,  426.  Were  it  not  so,  the  expecta- 
tion of  results  would  be  always  equivalent  to  a  binding  engagement  that 
they  should  follow.  But  the  obligation  of  a  contract  to  pay  money  is  to 
pay  that  which  the  law  shall  recognize  as  money  when  the  payment  is 
to  be  made.  If  there  is  anything  settled  by  decision  it  is  this,  and 
we  do  not  understand  it  to  be  controverted.  Davies,  28 ;  Barrington  v. 
Potter,  Dyer,  81,  b.  fol.  67;  Faw  v.  Marsteller,  2  Cranch,  29.  No  one  ever 
doubted  that  a  debt  of  one  thousand  dollars,  contracted  before  1834,  could 
be  paid  by  one  hundred  eagles  coined  after  that  year,  though  they  con- 


SUCH  DOLLARS  AS  CONGRESS  PROVIDE. 


1287 


tained  no  more  gold  than  ninety-four  eagles  such  as  were  coined  when 
the  contract  was  made;  and  this,  not  because  of  the  intrinsic  value  of 
the  coin,  but  because  of  its  legal  value.  The  eagles  coined  after  1834, 
were  not  money  until  they  were  authorized  by  law ;  and  had  they  been 
coined  before,  without  a  law  fixing  their  legal  value,  they  could  no  more 
have  paid  a  debt  than  uncoined  bullion,  or  cotton,  or  wheat.  Every  con- 
tract for  the  payment  of  money  simply  is  necessarily  subject  to  the 
constitutional  power  of  the  government  over  the  currency,  whatever  that 
power  may  be ;  and  the  obligation  of  the  parties  is,  therefore,  assumed 
with  reference  to  that  power.  Nor  is  this  singular.  A  covenant  for 
quiet  enjoyment  is  not  broken,  nor  is  its  obligation  impaired,  by  the  gov- 
ernment's taking  the  land  granted  in  virtue  of  its  right  of  eminent  do- 
main. The  expectation  of  the  covenantee  may  be  disappointed.  He 
may  not  enjoy  all  he  anticipated,  but  the  grant  was  made,  and  the  cove- 
nant undertaken,  in  subordination  to  the  paramount  right  of  the  govern- 
ment. Dobbins  v.  Brown,  2  Jones  [Pa.]  75;  Workman  v.  Mifflin,  6  Casey, 
362.  We  have  been  asked  whether  Congress  can  declare  that  a  contract 
to  deliver  a  quantity  of  grain  may  be  satisfied  by  the  tender  of  a  less 
quantity.  Undoubtedly  not.  But  this  is  a  false  analogy.  There  is  a 
wide  distinction  between  a  tender  of  quantities,  or  of  specific  articles, 
and  a  tender  of  legal  values.  Contracts  for  the  delivery  of  specific 
articles  belong  exclusively  to  the  domain  of  State  legislation,  while 
contracts  for  the  payment  of  money  are  subject  to  the  authority  of 
Congress,  at  least  so  far  as  relates  to  the  means  of  payment.  They 
are  engagements  to  pay  with  lawful  money  of  the  United  States,  and 
Congress  is  empowered  to  regulate  that  money.  It  cannot,  therefore, 
be  maintained  that  the  Legal  Tender  Acts  impaired  the  obligation  of 
contracts."    The  Legal  Tender  Cases,  12  Wallace,  547. 


LECTURE   LIX. 

The  Legal  Tender  Acts  reconsidered,  and  their  Validity  affirmed  by  a  di- 
vided Court.  —  The  Constitution  should  be  liberally  construed  in  view 
of  its  object,  which  is  Government.  —  It  speaks  in  General  Terms, 
and  enumerates  without  defining.  —  How  the  Power  to  make  all 
necessary  and  proper  Laws  should  be  Interpreted.  —  The  necessity 
need  not  be  AbsoKite,  and  all  means  which  are  plainly  adapted  to  the 
end,  and  consistent  with  the  Letter  and  Spirit  of  the  Constitution  are 
Valid.  —  The  right  to  issue  Bills  of  Credit  in  the  form  of  Greenbacks 
recognized  by  the  Minority  as  well  as  the  Majority  of  the  Court;  and 
making  them  a  Legal  Tender  is  a  necessary  and  proper  means  of  giv- 
ing them  Currency.  —  A  Judgment  of  the  Supreme  Court  is  not 
necessarily  conclusive  of  the  Principle.  —  Powers  resulting  from  their 
relation  to  the  Objects  of  the  enumerated  Powers.  —  The  Right  to 
Govern  Territory  acquired  by  Treaty  or  Conquest  falls  under  this 
Head.  —  The  Power  to  declare  Paper  Money  a  Legal  Tender  may  be 
exercised  during  Peace.  —  "  Supreme,"  as  applied  to  the  Powers  of 
the  United  States,  synonymous  with  "Sovereign." 

In  the  year  1870  the  Legal  Tender  Acts  were  reconsidered 
by  the  Supreme  Court.  One  of  the  judges  had  resigned 
during  the  interval,  and  two  having  been  appointed,  Hep- 
burn V.  Griswold  was  overruled  by  a  majority  of  five  to  four. 
The  Chief-Justice  naturally  held  fast  to  the  views  which  he 
had  expressed  on  the  former  occasion,  and  the  opinion  of  the 
court  was  delivered  by  Mr.  Justice  Strong  in  a  judgment  of 
great  ability,  and  substantially  the  same  as  that  which  he 
had  given  some  years  previously  while  sitting  in  the  Supreme 
Court  of  Pennsylvania.  It  is  too  full  of  matter  for  abbrevia- 
tion, and  should  be  read  at  length.  Though  having  the 
judgment  in  McCuUoch  v,  Maryland  as  its  corner-stone,  it 
amplifies  as  well  as  applies  the  doctrine  of  the  great  Chief- 
Justice,  and  cannot  be  omitted  from  a  work  which  aims  at 


THE  LEGAL  TENDER  ACTS  RECONSIDERED.    1289 

giving  an  account  of  the  government  of  the  United  States 
as  developed  by  the  force  of  circumstances,  the  acts  of  Con- 
gress, and  the  decisions  of  the  tribunal  which  has  been  at 
once  the  nurse  and  guardian  of  the  Constitution.  It  would 
be  rash  to  affirm  that  there  will  be  no  aftergrowth  ,  but  the 
powers  of  Congress  came  so  near  maturity  in  the  Legal 
'ender  Cases  that  carrying  them  farther  would  endanger 
the  local  self-government  which  is  as  essential  to  the  per- 
manence of  the  Union  as  the  supremacy  of  Congress.  The 
principal  heads  are  contained  in  the  following  extracts,  and 
may  give  an  adequate  idea  of  the  conclusions  reached  by  the 
majority  of  the  court,  and  the  reasons  on  which  they  were 
based :  — 

**  For  weighty  reasons  it  has  been  assumed  as  a  principle,  in 
construing  constitutions,  by  the  Supreme  Court  of  the  United 
States,  b}^  this  court,  and  by  every  other  court  of  reputation  in  the 
United  States,  that  an  act  of  the  legislature  is  not  to  be  declared 
void  unless  the  violation  of  the  Constitution  is  so  manifest  as  to 
leave  no  room  for  reasonable  doubt.  And  in  Fletcher  v.  Peck,^ 
Chief-Justice  Marshall  said ;  '  It  is  not  on  slight  implication  and 
vague  conjecture  that  the  legislature  is  to  be  pronounced  to  have 
transcended  its  powers,  and  its  acts  to  be  considered  void.  The 
opposition  between  the  Constitution  and  the  law  should  be  such 
that  the  judge  feels  a  clear  and  strong  conviction  of  their  incom- 
patibilit}'  with  each  other.*  It  is  incumbent,  therefore,  upon  those 
who  aflSrm  the  unconstitutionality  of  an  act  of  Congress  to  show 
clearly  that  it  is  in  violation  of  the  provisions  of  the  Constitution. 
It  is  not  sufficient  for  them  that  they  succeed  in  raising  a  doubt. 
Nor  can  it  be  questioned  that,  when  investigating  the  nature  and 
extent  of  the  powers  conferred  by  the  Constitution  upon  Congress, 
it  is  indispensable  to  keep  in  view  the  objects  for  which  those 
powers  were  granted.  This  is  a  universal  rule  of  construction 
applied  alike  to  statutes,  wills,  contracts,  and  constitutions.  If  the 
general  purpose  of  the  instrument  is  ascertained,  the  language  of 
its  provisions  must  be  construed  with  reference  to  that  purpose, 
and  so  as  to  subserve  it.  In  no  other  way  can  the  intent  of  the 
framers  of  the  instrument  be  discovered.     And  there  are  more 

1  6  Cranch,  87. 


1290      THE  CONSTITUTION   SHOULD   BE  INTERPRETED 

urgent  reasons  for  looking  to  the  ultimate  purpose  in  examining 
the  powers  conferred  by  a  constitution  than  there  are  in  construing 
a  statute,  a  will,  or  a  contract.  We  do  not  expect  to  find  in  a 
constitution  minute  details.  It  is  necessarily  brief  and  compre- 
hensive. It  prescribes  outlines,  leaving  the  filling  up  to  be  de- 
duced from  the  outlines.  In  Martin  v.  Hunter  ^  it  was  said :  '  The 
Constitution  unavoidably  deals  in  general  language.  It  did  not 
suit  the  purpose  of  the  people,  in  framing  this  great  charter  of  our 
liberties,  to  provide  for  minute  specifications  of  its  powers,  or  to 
declare  the  means  by  which  those  powers  should  be  carried  into 
execution.'  And  with  singular  clearness  was  it  said  hy  Chief- 
Justice  Marshall,  in  McCuUoch  v.  The  State  of  Maryland :  ^  *  A 
constitution,  to  contain  an  accurate  detail  of  all  the  subdivisions 
of  which  its  great  powers  will  admit,  and  of  all  the  means  by  which 
it  may  be  carried  into  execution,  would  partake  of  the  prolixit}'  of 
a  political  code,  and  would  scarcely  be  embraced  by  the  human 
mind.  It  would  probably  never  be  understood  by  the  public.  Its 
nature,  therefore,  requires  that  only  its  great  outlines  should  be 
marked,  its  important  objects  designated,  and  the  minor  ingredi- 
ents which  compose  those  objects  be  deduced  from  the  nature  of 
the  objects  themselves.'  If  these  are  correct  principles,  if  they  are 
proper  views  of  the  manner  in  which  the  Constitution  is  to  be  un- 
derstood, the  powers  confeiTcd  upon  Congress  must  be  regarded  as 
related  to  each  other,  and  all  means  for  a  common  end.  Each  is 
but  part  of  a  sj'stem,  a  constituent  of  one  whole.  No  single  power 
is  the  ultimate  end  for  which  the  Constitution  was  adopted.  It 
ma}',  in  a  very  proper  sense,  be  treated  as  a  means  for  the  accom- 
plishment of  a  subordinate  object ;  but  that  object  is  itself  a  means 
designed  for  an  ulterior  purpose.  Thus  the  power  to  levy  and  col- 
lect taxes,  to  coin  money  and  regulate  its  value,  to  raise  and  sup- 
port armies,  or  to  provide  for  and  maintain  a  nav}^  are  instruments 
for  the  paramount  object,  which  was  to  establish  a  government, 
sovereign  within  its  sphere,  with  capabilit}^  of  self-preservation, 
thereby  forming  a  union  more  perfect  than  that  which  existed  un- 
der the  old  Confederacy.  The  same  may  be  asserted  also  of  all 
the  non-enumerated  powers  included  in  the  authority  expressly 
given  *  to  make  all  laws  which  shall  be  necessar}^  and  proper  for 
carrying  into  execution  the  specified  powers  vested  in  Congress, 
and  all  other  powers  vested  by  the  Constitution  in  the  government 

1  1  Wheaton,  326.  *  4  Id.  405. 


IN  VIEW   OF   ITS   OBJECT. 


1291 


>f  the  United  States,  or  in  an}'  department  or  officer  thereof.'  It  is 
impossible  to  know  what  those  non-enumerated  powers  are,  and 
what  is  their  nature  and  extent,  without  considering  the  purposes 
they  were  intended  to  subserve.  Those  purposes,  it  must  be  noted, 
reach  beyond  the  mere  execution  of  all  powers  definitely  intrusted 
to  Congress  and  mentioned  in  detail.  They  embrace  the  execution 
of  all  other  powers  vested  by  the  Constitution  in  the  government 
of  the  United  States,  or  in  an}'  department  or  officer  thereof.  It 
certainly  was  intended  to  confer  upon  the  government  the  power  of 
self-preservation.  Said  Chief-Justice  Marshall,  in  Cohens  v.  The 
Bank  of  Virginia :  ^  '  America  has  chosen  to  be,  in  many  respects 
and  to  many  purposes,  a  nation,  and  for  all  these  purposes  her 
government  is  complete,  for  all  these  objects  it  is  supreme.  It 
can  then,  in  effecting  these  objects,  legitimately  control  all  indi- 
viduals or  governments  within  the  American  territory.'  He  added, 
in  the  same  case  :  '  A  constitution  is  frajned  for  ages  to  come,  and 
is  designed  to  approach  immortality  as  near  as  mortality  can  ap- 
proach it.  Its  course  cannot  always  be  tranquil.  It  is  exposed  to 
storms  and  tempests ;  and  its  framers  must  be  unwise  statesmen, 
indeed,  if  they  have  not  provided  it,  as  far  as  its  nature  will  per- 
mit, with  the  means  of  self-preservation  from  the  perils  it  is  sure 
to  encounter.'  That  would  appear,  then,  to  be  a  most  unreason- 
able construction  of  the  Constitution  which  denies  to  the  govern- 
ment created  by  it  the  right  to  employ  freely  every  means,  not 
prohibited,  necessary  for  its  preservation,  and  for  the  fulfilment  of 
its  acknowledged  duties.  Such  a  right,  we  hold,  was  given  by  the 
last  clause  of  the  eighth  section  of  its  First  Article.  The  means 
or  instrumentalities  referred  to  in  that  clause,  and  authorized,  are 
not  enumerated  or  defined.  In  the  nature  of  things,  enumeration 
and  specification  were  impossible.  But  they  were  left  to  the  dis- 
cretion of  Congress,  subject  only  to  the  restrictions  that  they  be 
not  prohibited,  and  be  necessary  and  proper  for  carrying  into  ex- 
ecution the  enumerated  powers  given  to  Congress,  and  all  other 
powers  vested  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof.  And  here  it  is  to  be  observed,  it  is 
not  indispensable  to  the  existence  of  any  power  claimed  for  the 
federal  government  that  it  can  be  found  specified  in  the  words  of 
the  Constitution,  or  clearly  and  directly  traceable  to  some  one  of 
the  specified  powers.    Its  existence  may  be  deduced  fairly  from 


1  6  Wheaton,  414. 


VOL.  II.  — 41 


1292         THE  NECESSITY  FOR   AN  ACT  OF  CONGRESS 

more  than  one  of  the  substantive  powers  express!}^  defined,  or  from 
them  all  combined.  It  is  allowable  to  grant  any  number  of  them, 
and  infer  from  all  of  them  that  the  power  has  been  conferred.  .  .  . 

''  Congress  has  often  exercised,  without  question,  powers  that 
are  not  expressly  given,  nor  ancillary  to  any  single  enumerated 
power.  Powers  thus  exercised  are  what  are  called  by  Judge  Story, 
in  his  Commentaries  on  the  Constitution,  *  resulting  powers,'  aris- 
ing from  the  aggregate  powers  of  the  government.  He  instances 
the  right  to  sue  and  make  contracts.  Many  others  might  be  given. 
The  oath  required  by  law  from  officers  of  the  government  is  one  ; 
so  is  building  a  capitol,  or  a  presidential  mansion ;  and  so  also  is 
the  penal  code.  .  .  . 

''  It  was,  however,  in  McCulloch  v.  Maryland  that  the  fullest 
consideration  was  given  to  this  clause  of  the  Constitution  granting 
auxiliarj^  powers,  and  a  construction  adopted  that  has  ever  since 
been  accepted  as  determining  its  true  meaning.  We  shall  not  now 
go  over  the  ground  there  trodden.  It  is  familiar  to  the  legal  pro- 
fession, and,  indeed,  to  the  whole  country.  Suffice  it  to  say,  in 
that  case  it  was  finally  settled  that  in  the  gift  by  the  Constitution 
to  Congress  of  authority  to  enact  laws  '  necessary  and  proper '  for 
the  execution  of  all  the  powers  created  by  it,  the  necessity  spoken 
of  is  not  to  be  understood  as  an  absolute  one.  On  the  contrary, 
this  court  then  held  that  the  sound  construction  of  the  Constitution 
must  allow  to  the  national  legislature  that  discretion  with  respect 
to  the  means  by  which  the  powers  it  confers  are  to  be  carried  into 
execution,  which  will  enable  that  body  to  perform  the  high  duties 
assigned  to  it  in  the  manner  most  beneficial  to  the  people.  Said 
Chief-Justice  Marshall,  in  delivering  the  opinion  of  the  court :  '  Let 
the  end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitu- 
tion, and  all  means  which  are  appropriate,  which  are  plainly 
adapted  to  that  end,  which  are  not  prohibited,  but  consist  with 
the  letter  and  spirit  of  the  Constitution,  are  constitutional.'  The 
case  also  marks  out  with  admirable  precision  the  province  of  this 
court.  It  declares  that  '  when  the  law  (enacted  by  Congress)  is 
not  prohibited,  and  is  really  calculated  to  effect  any  of  the  objects 
intrusted  to  the  government,  to  undertake  here  to  inquire  into  the 
degree  of  its  necessity  would  be  to  pass  the  line  which  circum- 
scribes the  judicial  department,  and  to  tread  on  legislative  ground. 
This  court  (it  was  said)  disclaims  all  pretensions  to  such  a 
power.'  .  .  . 


NEED  NOT  BE  ABSOLUTE. 


1293 


"  With  these  rules  of  constitutional  construction  before  us,  set- 
tled at  an  earl}"  period  in  the  histor}^  of  the  government,  hitherto 
universall}^  accepted,  and  not  even  now  doubted,  we  have  a  safe 
guide  to  a  right  decision  of  the  questions  before  us.  Before  we 
can  hold  the  Legal  Tender  Acts  unconstitutional,  we  must  be  con- 
vinced they  were  not  appropriate  means,  or  means  conducive  to  the 
execution  of  any  or  all  of  the  powers  of  Congress,  or  of  the  govern- 
ment, not  appropriate  in  any  degree  (for  we  are  not  judges  of 
the  degree  of  appropriateness),  or  we  must  hold  that  they  were 
prohibited. 

"  This  brings  us  to  the  inquiry  whether  they  were,  when  enacted, 
appropriate  instrumentalities  for  carrying  into  effect,  or  executing 
ftny  of  the  known  powers  of  Congress,  or  of  any  department  of  the 
government.  Plainly,  to  this  inquir}",  a  consideration  of  the  time 
when  they  were  enacted,  and  of  the  circumstances  in  which  the 
government  then  stood,  is  important.  It  is  not  to  be  denied  that 
■acts  ma}'  be  adapted  to  the  exercise  of  lawful  power,  and  appro- 
priate to  it,  in  seasons  of  exigency,  which  would  be  inappropriate 
at  other  times.  We  do  not  propose  to  dilate  at  length  upon  the 
circumstances  in  which  the  country  was  placed  when  Congress  at- 
tempted to  make  treasury  notes  a  legal  tender.  They  are  of  too 
recent  occurrence  to  justif}'  enlarged  description.  Suffice  it  to  say 
that  a  civil  war  was  then  raging  which  seriously  threatened  the 
overthrow  of  the  government,  and  the  destruction  of  the  Constitu- 
tion itself.  It  demanded  the  equipment  and  support  of  large  armies 
and  navies,  and  the  employment  of  money  to  an  extent  beyond  the 
capacity  of  all  ordinary  sources  of  suppl3\  Meanwhile  the  public 
treasury  was  nearly  empty,  and  the  credit  of  the  government,  if 
not  stretched  to  its  utmost  tension,  had  become  nearly  exhausted. 
Moneyed  institutions  had  advanced  largel}^  of  their  means,  and 
more  could  not  be  expected  of  them.  They  had  been  compelled  to 
suspend  specie  pajTnents.  Taxation  was  inadequate  to  pay  even 
the  interest  on  the  debt  already  incurred,  and  it  was  impossible  to 
await  the  income  of  additional  taxes.  The  necessit}"  was  immedi- 
ate and  pressing.  The  army  was  unpaid.  There  was  then  due  to 
the  soldiers  in  the  field  nearly  a  score  of  millions  of  dollars.  The 
requisitions  from  the  war  and  navy  departments  for  supplies  ex- 
ceeded fifty  millions,  and  the  current  expenditure  was  over  one 
million  per  day.  The  entire  amount  of  coin  in  the  country,  includ- 
ing that  in  private  hands,  as  well  as  that  in  banking  institutions, 


1294     THE  CIRCULATION  KNOWN  AS   "GREENBACKS" 

was  insufficient  to  supply  the  need  of  the  government  three  months 
had  it  all  been  poured  into  the  treasury.  Foreign  credit  we  had 
none.  We  say  nothing  of  the  overhanging  parah'sis  of  trade,  and 
of  business  generally,  which  threatened  loss  of  confidence  in  the 
ability  of  the  government  to  maintain  its  continued  existence, 
and  therewith  the  complete  destruction  of  all  remaining  national 
credit. 

''  It  was  at  such  a  time  and  in  such  circumstances  that  Congress 
was  called  upon  to  devise  means  for  maintaining  the  army  and 
navy,  for  securing  the  large  supplies  of  money  needed,  and,  indeed, 
for  the  preservation  of  the  government  created  by  the  Constitution. 
It  was  at  such  a  time  and  in  such  an  emergency  that  the  Legal 
Tender  Acts  were  passed.  Now,  if  it  were  certain  that  nothing 
else  would  have  supplied  the  absolute  necessities  of  the  treasurj^, 
that  nothing  else  would  have  enabled  the  government  to  maintain 
its  armies  and  navy,  that  nothing  else  would  have  saved  the  gov- 
ernment and  the  Constitution  from  destruction,  while  the  Legal 
Tender  Acts  would,  could  any  one  be  bold  enough  to  assert  that 
Congress  transgressed  its  powers?  Or,  if  these  enactments  did 
work  these  results,  can  it  be  maintained  now  that  the}^  were  not 
for  a  legitimate  end,  or  '  appropriate  and  adapted  to  that  end,'  in 
the  language  of  Chief- Justice  Marshall  ?  That  they  did  work  such 
results  is  not  to  be  doubted.  Something  revived  the  drooping  faith 
of  the  people  ;  something  brought  immediately  to  the  government's 
aid  the  resources  of  the  nation  ;  and  something  enabled  the  suc- 
cessful prosecution  of  the  war,  and  the  preservation  of  the  national 
life.     What  was  it,  if  not  the  legal  tender  enactments  ? 

"  If,  however,  it  be  conceded  that  some  other  means  might  have 
been  chosen  for  the  accomplishment  of  these  legitimate  and  neces- 
sary ends,  the  concession  does  not  weaken  the  argument.  It  is 
urged  now,  after  the  lapse  of  nine  j'ears,  and  when  the  emergenc}^ 
has  passed,  that  treasurj'^  notes  without  the  legal  tender  clause 
might  have  been  issued,  and  that  the  necessities  of  the  government 
might  thus  have  been  supplied.  Hence  it  is  inferred  there  was  no 
necessity  for  giving  to  the  notes  issued  the  capability  of  paying 
private  debts.  At  best  this  is  mere  conjecture.  But  admitting  it 
to  be  true,  what  does  it  prove  ?  Nothing  more  than  that  Congress 
had  the  choice  of  means  for  a  legitimate  end,  each  appropriate  and 
adapted  to  that  end,  though  perhaps  in  different  degrees.  What 
then  ?     Can  this  court  say  that  it  ought  to  have  adopted  one  rather 


NECESSAEY  AND   CONSTITUTIONAL. 


1295 


;:than  the  other?  Is  it  our  province  to  decide  that  the  means  se- 
lected were  be3'ond  the  constitutional  power  of  Congress,  because 
,we  may  think  that  other  means  to  the  same  ends  would  have  been 
more  appropriate  and  equall}^  efficient?  That  would  be  to  assume 
legislative  power,  and  to  disregard  the  accepted  rules  for  constru- 
ing the  Constitution.  Said  Chief-Justice  Marshall,  in  McCulloch 
V.  Marjland,  as  already  stated :  *  When  the  law  is  not  prohibited, 
and  is  Yeally  calculated  to  effect  any  of  the  objects  intrusted  to  the 
government,  to  undertake  here  to  inquire  into  the  degree  of  its 
necessity  would  be  to  pass  the  line  which  circumscribes  the  judicial 
department,  and  to  tread  on  legislative  ground.'  "  ^ 


The  Chief- Justice  dissented  on  grounds  which  are  sub- 
stantially as  follows :  "  There  is  no  connection  between  the 
express  power  to  coin  money  and  the  inference  that  the 
government  can  in  any  contingency  make  its  securities  per- 
form the  functions  of  a  legal  tender  in  payment  of  debts." 
The  power  to  exclude  notes  not  authorized  by  Congress  may, 
perhaps,  be  deduced  from  the  power  to  regulate  coin.  But 
the  power  to  emit  bills  of  credit  is  an  exercise  of  the  power 
to  borrow  money,  and  power  over  the  currency  is  incidental 
to  that  power  and  the  power  to  regulate  commerce.  Such 
was  the  doctrine  of  The  Veazie  Bank  v,  Fenno,^  and  it  went 
no  further.  The  Chief-Justice  then  asked,  "Is  the  power  to 
make  the  notes  or  bills  of  credit  issued  by  the  government  a 
legal  tender  an  appropriate,  plainly-adapted  means  to  a  legit- 
imate and  constitutional  end  ?  Or,  to  state  the  question  as 
formulated  by  the  minority  in  Hepburn  v,  Griswold,  '  does 
there  exist  any  power  in  Congress  or  the  government,  by 
express  grant,  in  the  execution  of  which  the  Legal  Tender 
Act  is  necessary  and  proper,  in  the  sense  above  defined,  un- 
der the  circumstances  of  its  passage  ? '  "  In  his  opinion,  "  the 
issuing  of  the  circulation  commonly  known  as  *  greenbacks' 
was  necessary  and  constitutional.  They  were  necessary  to 
the  payment  of  the  army  and  navy,  and  to  all  the  purposes 
for  which  the  government  uses  money.  The  banks  had  sus- 
pended specie  payments,  and  the  government  was  reduced  to 

1  Legal  Tender  Cases,  12  Wallace,  457. 


1296   MAKING   UNITED   STATES   NOTES   A  LEGAL  TENDER 

the  alternative  of  using  their  paper  or  issuing  its  own." 
This  did  not  touch  the  real  issue,  which  depended  on  whether 
"  the  making  them  a  legal  tender  was  a  necessary  means  to 
the  execution  of  the  power  to  borrow  money."  If  the  notes 
would  circulate  as  well  without  that  quality,  it  was  idle  to 
urge  necessity  as  a  justification.  The  Chief- Justice  then  as- 
signed various  reasons  for  holding  that  notes  of  the  United 
States  would  have  answered  the  purposes  of  money,  and  been 
as  eflficient  for  carrying  on  the  war,  though  creditors  had  not 
been  compelled  to  accept  them  in  payment.  If  such  a  cur- 
rency was  not  in  excess,  it  would  maintain  its  level,  and 
would  be  accepted  everywhere  as  money.  If  it  was  not,  no 
governmental  fiat  could  prevent  depreciation.  He  had,  in- 
deed, when  Secretary  of  the  Treasury,  answered  the  inquiry 
of  the  Committee  of  Ways  and  Means,  was  it  necessary  to 
make  the  United  States  notes  a  legal  tender,  affirmatively. 
He  was  now  satisfied  that  this  opinion  was  erroneous,  and 
did  not  hesitate  to  say  so. 

Space  is  wanting  to  trace  the  argument  further ;  but  I 
may  say  that  it  turned  throughout  on  considerations  which 
can  have  but  a  secondary  importance  in  a  legal  tribunal.  It 
is  no  doubt  true  that  if  the  monetary  units,  whether  in  the 
form  of  coin  or  paper,  are  increased  in  number  they  will  de- 
preciate in  value,  and  that  on  the  completion  of  the  process 
the  purchasing  power  of  the  circulation  will  be  the  same  as 
it  was  previously ;  but  although  the  quality  of  legal  tender 
cannot  obviate  the  injurious  consequences  of  an  overissue,  it 
may  give  the  same  market  value  to  things  which  are  intrinsi- 
cally different.  That  such  may  be  the  effect  has  been  demon- 
strated in  the  United  States,  where  a  lawful  silver  dollar  will 
purchase  more  than  the  trade  dollar,  and  as  much  as  a  gold 
dollar,  although  it  contains  less  silver  than  the  one,  and  is 
worth  much  less  than  the  other,  simply  because  Congress 
have  made  the  lawful  dollar  a  monetary  unit  and  compulsorily 
current.  Whether  a  similar  result  would  follow  from  making 
the  United  States  notes  a  legal  tender  was  a  political  ques- 
tion, and  when  decided  by  Congress  could  not  be  reconsid- 
ered by  the  judiciary.     Some  political  economists  would,  no 


NECESSARY  TO  INSURE  THEIR  CURRENCY. 


1297 


doubt,  be  of  opinion,  with  the  majority  of  the  court  in  Hep- 
burn V.  Griswold,  that  the  act  of  1863  was  not  a  necessary- 
means  of  tiding  over  the  war,  and  others  think  differently ; 
but  the  decision  belonged  constitutionally  to  the  assembly 
which  had  to  provide  the  ways  and  means  of  subduing  the 
insurrection.  It  does  not  seem  to  have  occurred  to  the  Chief- 
Justice  that  the  conclusion  which  he  formed  as  a  statesman 
as  to  the  measures  to  be  adopted  in  view  of  the  emergency 
may  have  been  practically  nearer  the  truth  than  his  second 
thought  when  speaking  from  the  bench.  Weighing  the  rea- 
sons which  he  assigned  for  distrusting  his  original  opinion 
against  those  given  by  Mr.  Justice  Strong  for  regarding  it  as 
sound,  most  persons  will,  perhaps,  think  that  his  first  impres- 
sion was  correct.  Whether  such  was  or  was  not  its  charac- 
ter when  regarded  in  the  light  of  subsequent  events,  it  was 
the  sincere  judgment  of  an  able  man,  charged  with  the  re- 
sponsibility of  administering  the  finances,  and  actuated  by  a 
sincere  desire  to  serve  his  country.  If  he  had  reasonable 
grounds  for  recommending  the  measure,  and  the  House  of 
Representatives  concurred  with  him,  it  was  their  duty  to 
follow  his  advice.  Such  a  moral  obligation  is  the  necessity 
which  the  Constitution  contemplates  and  requires,  and  where 
it  exists  the  act  is  not  less  valid  because  it  subsequently  ap- 
pears that  a  different  course  might  have  been  adopted  with 
a  not  less  favorable  result.^ 


1  The  Legal  Tender  Cases,  12  Wallace,  457,  541.  See  ante,  p.  103; 
Hamilton's  Works,  vol.  iii.  186. 

"  It  is  objected  that  none  but  necessary  and  proper  means  are  to  be 
employed,  and  the  Secretary  of  State  maintains  that  no  means  are  to  be 
considered  necessary  but  those  without  which  the  grant  of  the  powers 
would  be  nugatory.  ...  It  is  essential  to  the  being  of  the  national  gov- 
ernment that  so  erroneous  a  conception  of  the  meaning  of  the  word 
*  necessary '  should  be  exploded.  It  is  certain  that  neither  the  gram- 
matical nor  the  popular  sense  of  the  term  requires  that  construction. 
According  to  both,  *  necessary '  often  means  no  more  than  needful, 
requisite,  incidental,  or  conducive  to.  It  is  a  common  mode  of  expres- 
sion to  say  that  it  was  necessary  for  a  government  or  a  person  to  do  this 
or  that  thing,  when  nothing  more  is  intended  or  understood  than  that 
interests  of  the  government  or  persons  require,  or  may  be  promoted  by 


1298   MAKING   UNITED   STATES   NOTES  A  LEGAL  TENDER 

Why  SO  much  stress  was  laid  in  Hepburn  v,  Griswold  on 
whether  the  Legal  Tender  Act  was  "  necessary,"  and  so  little 
on  whether  it  was  "  proper,"  can  be  readily  understood.  No 
one,  I  believe,  contends  that  in  establishing  a  currency  the 
legislature  may  not  appropriately,  as  they  do  customarily, 
regulate  its  value,  —  that  is,  the  rate  at  which  it  shall  be 
taken  in  payment.  Had  not  the  framers  of  the  Constitution 
been  of  this  opinion  they  would  not,  in  giving  the  power  to 
coin,  have  added  "and  declare  the  value  thereof."  If  this  is 
true  of  gold  and  silver,  which  may  pass  current  from  their 
intrinsic  value,  it  applies  with  more  force  where  paper  money 
is  issued  during  a  political  and  financial  crisis,  and  is  re- 
garded "  with  distrust  in  some  quarters,  with  hostility  in 
others.  Such  a  currency  depends  on  the  confidence  of  the 
community,  or  on  positive  law;  that  is,  creditors  must  be 
willing  or  compellable  to  receive  it  in  payment.     It  is  not 

the  doing  of,  this  or  that  thing.  The  imagination  can  be  at  no  loss  for 
exemplifications  on  the  use  of  the  word  in  this  sense.  And  it  is  the  true 
one,  in  which  it  is  to  be  understood  as  used  in  the  Constitution.  The 
whole  turn  of  the  clause  indicates  that  it  was  the  intent  of  the  conven- 
tion by  that  clause  to  give  a  liberal  latitude  to  the  exercise  of  the  specified 
powers.  The  expressions  have  peculiar  comprehensiveness.  They  are 
to  make  all  laws  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers,  and  all  other  powers  vested  by  the  Constitution  in 
the  government  of  the  United  States,  or  in  any  department  or  officer 
thereof. 

"  To  understand  the  word  as  the  Secretary  of  State  does  would  be  to 
depart  from  its  obvious  and  popular  sense,  and  to  give  it  a  restrictive 
operation,  —  an  idea  never  before  entertained.  It  would  be  to  give  it  the 
same  force  as  if  the  word  'absolutely'  or  'indispensably'  had  been 
prefixed  to  it. 

"  Such  a  construction  would  beget  endless  uncertainty  and  emban-ass- 
ment.  The  cases  must  be  palpable  and  extreme  in  which  it  could  be 
pronounced  with  certainty  that  a  measure  was  absolutely  necessary,  or 
one  without  which  the  exercise  of  a  given  power  would  be  nugatory. 
There  are  few  measures  of  any  government  which  would  stand  so  severe 
a  test.  To  insist  upon  it  would  be  to  make  the  criterion  of  the  exercise 
of  any  implied  power  a  case  of  extreme  necessity,  which  is  rather  a  rule 
to  justify  the  overleaping  of  the  bounds  of  constitutional  authority  than  to 
govern  the  ordinary  exercise  of  it."  Opinion  on  the  Constitutionality  of 
the  United  States  Bank,  Hamilton's  Works,  vol.  iii.  pp.  186,  187. 


NECESSAEY  TO  INSURE  THEIR  CURRENCY.  1299 

• 

enough  to  print  the  notes  and  call  them  dollars;  they  must 
be  declared  a  legal  tender,  so  that  every  man  who  takes  them 
may  be  sure  that  they  cannot  be  refused  by  others,  and  will 
enable  him  to  pay  what  he  owes.  If  bills  of  credit  are  thrown 
on  the  market  without  taking  this  precaution,  and  great 
banking  companies  and  well-known  financiers  refuse  to  re- 
ceive them  on  deposit  or  in  payment,  the  example  may  be 
followed,  and  the  credit  of  the  government  seriously  im- 
paired. Such  a  result  might  well  have  been  apprehended  in 
the  United  States  during  the  Civil  War.  The  new  financial 
system  was  opposed  by  many  persons  on  principle,  by  oth- 
ers from  disaffection  to  the  government.  The  notes  of  the 
United  States  became  so  much  discredited  that  the  banks  of 
the  leading  commercial  cities  received  them  only  as  a  special 
deposit  and  not  as  money  of  account ;  a  national  bankruptcy 
seemed  close  at  hand,  and,  in  the  opinion  of  most  persons 
who  were  qualified  to  judge,  would  have  ensued  had  not 
Congress,  acting  on  the  recommendation  of  the  Secretary  of 
the  Treasury,  rendered  it  the  interest  of  creditors  to  accept 
what  no  debtor  could  legally  refuse.^ 

If  it  cannot  be  denied  in  view  of  these  considerations  that 
making  the  circulating  medium,  whether  coin  or  paper,  a 
legal  tender  is  an  appropriate  means  of  causing  it  to  pass 
readily  from  hand  to  hand,  and  may  be  necessary  for  that 
end,  the  question  whether  such  a  measure  should  be  adopted 
in  a  particular  instance  is  a  political  question,  and  exclusively 
for  the  legislature.  The  real  issue,  could  the  United  States 
issue  paper  money  and  suppress  the  State  bank-notes,  was 
decided  in  favor  of  the  government  in  The  Veazie  Bank  v, 
Fenno ;  and  in  adhering  to  that  judgment  the  Chief-Justice 
would  seem  virtually  to  have  given  up  the  case.  The  veri- 
table turning-point  was  clearly  perceived  by  an  able  jurist, 
who,  in  writing  on  the  same  side,  took  the  consistent,  if  not 
tenable,  position  that  Congress  have  no  power  whatever  to 
create  a  paper  currency.-*     His  reasons,  as  assigned  in  Borie 

1  See  Twenty  Years  in  Congress,  by  James  G.  Blaine,  vol.  i.  p.  410. 

2  It  has  been  argued  that  under  this  clause,  "  to  borrow  money  on  the 
credit  of  the  United  States"  (Art.  I.,  sect,  viii.,  par.  2),  Congress  may 


1300        STRIKING   OUT  "TO  EMIT  BILLS   OF   CKEDIT  " 

V.  Trott,^  were  that  the  coinage  power  is  confined  to  metals, 
and  operates  as  an  implied  restriction  on  the  use  of  other 

issue  these  "United  States  notes,"  because  they  are  only  acknowledg- 
ments of  debt  in  a  negotiable  form,  and  in  order  to  give  them  greater 
credit  make  them  a  legal  tender.  That  there  may  be  constitutionally 
issued  to  the  public  creditor  certificates  of  the  amount  due,  transferable 
by  assignment,  or  bonds  or  notes  payable  to  the  bearer,  which  can  pass 
from  hand  to  hand  by  mere  delivery,  I  do  not  deny.  These  are  all  secu- 
rities, and  Congress  are  vested  expressly  with  power  "to  provide  for  the 
punishment  of  counterfeiting  the  securities  and  current  coin  of  the  United 
States  "  (Art.  I.,  sect,  viii.,  par.  6).  This  language  is  accurate.  Secu- 
rities, ex  vi  termini,  are  something  different  from  money.  This  view  is 
strengthened  when  we  find  the  coin  described  in  the  same  paragraph  as 
current  coin. 

The  United  States  notes  are  not  securities  for  money  which  may  be 
issued  under  the  authority  to  borrow;  but  they  are  "  bills  of  credit,"  — 
things  distinct  and  different  from  securities.  That  there  is  such  a  dis- 
tinction may  be  clearly  shown  by  the  judgments  of  the  highest  tribunal, 
which  gives  the  law  on  these  subjects  to  all  other  courts.  According  to 
that  tribunal,  bills  of  credit  are  not  certificates  of  loan,  not  treasury 
bonds  or  notes,  not  acknowledgments  of  indebtedness,  —  all  of  which  are 
mere  securities,  —  but  bills  invested  with  the  functions  of  money,  just 
such  bills  as  the  United  States  notes  issued  in  pursuance  of  the  act  of 
Congress  in  question.  In  Craig  v.  The  State  of  Missouri  (4  Peters,  431), 
Chief- Justice  Marshall,  in  delivering  the  opinion  of  the  court,  says  :  "  In 
its  enlarged  and,  perhaps,  literal  sense,  the  term  'bill  of  credit*  may  com- 
prehend any  instrument  by  which  a  State  engages  to  pay  money  at  a 
future  day,  — thus  including  a  certificate  given  for  money  borrowed.  But 
the  language  of  the  Constitution  itself,  and  the  mischief  to  be  prevented, 
which  we  know  from  the  history  of  our  country,  equally  limit  the  inter- 
pretation of  the  term.  The  word  *  emit '  is  never  employed  in  describing 
those  contracts  by  which  a  State  binds  itself  to  pay  money  at  a  future 
day  for  services  actually  received,  or  for  money  borrowed  for  present  use; 
nor  are  instruments  executed  for  such  purposes  in  common  language  de- 
nominated '  bills  of  credit.'  To  '  emit  bills  of  credit '  conveys  to  the  mind 
the  idea  of  issuing  paper  intended  to  circulate  through  the  community 
for  its  ordinary  purposes  as  money,  which  paper  is  redeemable  at  a  future 
day.  This  is  the  sense  in  which  the  terms  have  always  been  understood." 
The  definition  here  given  was  subsequently  reconsidered  and  sustained  in 
Briscoe  v.  The  Bank  of  Kentucky  (8  Peters,  118).  According  to  this 
clear  and  authoritative  exposition,  what  distinguishes  bills  of  credit  from 


1  5  Philad.  366. 


NOT  EQUIVALENT  TO  PROHIBITION. 


1301 


materials ;  and  that  in  striking  out  the  words  "  to  emit  bills 
of  credit "  from  the  clause  conferring  the  power  to  borrow, 

such  securities  as  are  issued  to  the  public  creditor  is  that  the  former  are, 
and  the  latter  are  not,  intended  to  circulate  as  money.  These  United 
States  notes,  then,  are  not  acknowledgments  of  debt,  nor  "  securities  of 
the  United  States,"  but  *' bills  of  credit,"  —  in  other  words,  "money." 
Indeed,  this  act  of  Congress  of  Feb.  25,  1862,  intends  to  leave  no  doubt 
on  that  point,  for  it  expressly  declares  that  they  shall  be  "  lawful  money." 
In  conformity,  then,  to  the  principle,  as  settled  by  the  Supreme  Court  in 
McCuUoch  V.  The  State  of  Maryland,  we  must  turn  to  the  money  clause 
to  ascertain  whether  Congress  had  authority  to  make  them  "  lawful 
money."  That  body  cannot,  as  incidental  to  the  power  to  borrow,  cre- 
ate any  kind  of  money  which  will  not  stand  the  test  of  the  express  power 
.which  is  granted  on  that  subject. 

If  any  doubt  remains  as  to  whether  the  right  to  emit  bills  of  credit  — 
to  make  paper  money — can  be  exercised  as  incidental  to  the  borrowing 
power,  it  ought,  as  it  appears  to  me,  to  be  entirely  dissipated  by  the  pro- 
ceedings of  the  Federal  Convention  when  this  clause  was  before  them.  I 
freely  admit  that  the  opinions  expressed  in  that  body  are  not  conclusive 
upon  the  interpretation  of  the  Constitution.  That  instrument  is  to  be 
construed  like  all  others,  by  its  four  corners.  But  surely,  as  Chief-Justice 
Marshall  relied  "on  the  history  of  our  country  "  in  limiting  the  meaning 
of  the  words  "bills  of  credit,"  we  may  resort  for  light  to  the  opinions 
and  votes  of  the  men  who  framed  the  Constitution,  in  deciding  whether 
in  the  words  "  to  borrow  money"  was  intended  to  be  included  "  to  emit 
bills  of  credit; "  for  that  is  the  precise  question  we  have  here  to  consider. 
By  the  ninth  of  the  old  Articles  of  Confederation,  section  5,  it  was  de- 
clared that  "the  United  States,  in  Congress  assembled,  shall  have  au- 
thority  to  borrow  money  or  emit  bills  on  the  credit  of  the  United  States." 
In  the  plan  of  the  Constitution,  as  reported  to  the  convention  by  the 
Committee  of  Detail,  of  which  Mr.  Rutledge  was  chairman,  this  clause 
was  copied,  —  "to  borrow  money  and  emit  bills  on  the  credit  of  the 
United  States."  On  the  17th  of  August,  1787,  in  convention,  Mr. 
Gouverneur  Morris,  of  Pennsylvania,  moved  to  strike  out  the  words 
"  and  emit  bills."  There  was  a  debate  on  this  motion,  which  is  reported 
by  Mr.  Madison.  It  was  argued  by  some  —  and  Mr.  Madison  himself 
among  the  number  —  that  the  words  had  better  remain,  with  a  provision 
prohibiting  them  from  being  made  a  legal  tender.  Mr.  James  Wilson,  of 
Pennsylvania,  afterwards  one  of  the  Justices  of  the  Supreme  Court  of  the 
United  States,  appointed  by  President  Washington,  contended  that  it 
would  have  a  most  salutary  influence  on  the  credit  of  the  United  States 
"  to  remove  the  possibility  of  paper  money."  Other  members  who  spoke 
concurred  with  him  in  this  view.  The  motion  was  carried,  and  the  words 
stricken  out  by  a  vote  of  nine  States  to  two.     Mr.  Madison  has  added  in, 


1302  A  JUDGMENT   OF  THE   STJPEEME   COUET 

the  convention  showed  that  they  did  not  mean  to  sanction 
or  allow  their  use.^  The  argument  has  been  noticed  else- 
where, but  I  may  observe  that  the  effect  of  striking  out  a 
clause  is  simply  to  leave  the  instrument  as  it  would  have 
stood  had  the  clause  not  been  introduced.  If  omission  were 
equivalent  to  prohibition,  there  would  be  an  end  to  the  doc- 
trine of  implied  powers,  contrary  to  the  manifest  intent  of 
the  Article  I.,  section  vii.,  subdivision  19. 

In  The  Legal  Tender  Cases  ^  the  Chief-Justice  spoke  some- 
what bitterly  of  the  reversal  of  the  judgment  in  Hepburn  v. 
Griswold.  Five  judges  had  by  a  majority  of  one  set  aside  a 
decision  which  had  been  made  by  five  with  only  three  dis- 

a  foot-note,  that  the  vote  by  Virginia  in  the  affirmative  was  occasioned  by 
his  acquiescence,  because  he  became  satisfied  that  striking  out  the  words 
would  not  disable  the  government  from  the  use  of  public  notes,  as  far  as 
they  could  be  safe  and  proper,  and  would  only  cut  off  the  pretext  for  a 
paper  currency,  and  particularly  for  making  the  bills  a  tender  either  for 
public  or  private  debts  (5  Elliott's  Debates,  434,  435).  I  do  not  know 
how  these  proceedings  may  strike  other  minds,  but  they  have  convinced 
me  that  the  Federal  Convention  understood  by  "  bills  of  credit,"  not 
securities, — certificates  of  loan  or  indebtedness,  treasury  notes,  or  ex- 
chequer bills,  — but  just  what  Chief-Justice  Marshall  afterwards  defined 
them  to  be,  "  paper  money,"  and  meant  to  deny  to  Congress  the  power 
to  make  such  money. 

^  Luther  Martin,  in  his  address  to  the  Maryland  Legislature  in  justifi- 
cation of  his  course  in  retiring  from  the  Federal  Convention,  has  also 
given  a  brief  sketch  of  this  interesting  debate,  which  corresponds  in  the 
main  with  that  of  Mr.  Madison.  He  declares  in  the  most  emphatic  man- 
ner that  "  a  majority  of  the  convention,  being  willing  to  risk  any  political 
evil  rather  than  admit  the  idea  of  a  paper  emission  in  any  possible  case, 
refused  to  trust  this  authority  to  the  government "  (Secret  Proceedings  of 
the  Federal  Convention,  p.  57).  He  afterwards  informs  the  legislature, 
as  indicative  of  the  temper  of  the  body  from  which  he  had  withdrawn, 
that  as  the  Constitution  "  was  reported  by  the  Committee  of  Detail,  the 
States  were  only  prohibited  from  emitting  them  (bills  of  credit)  without 
the  consent  of  Congress;  but  the  convention  were  so  smitten  with  the 
paper-money  dread  that  they  insisted  that  the  prohibition  should  be  ab- 
solute. It  was  my  opinion,  sir,"  he  proceeds  to  say,  "that  the  States 
ought  not  to  be  totally  deprived  of  the  right  to  emit  bills  of  credit,  and 
that,  as  we  had  not  given  an  authority  to  the  General  Government  for 
that  purpose,  it  was  the  more  necessary  to  retain  it  in  the  States." 

2  12  Wallace,  457,  572. 


NOT  ALWAYS  CONCLUSIVE  OF  THE  PRINCIPLE.     1303 

sentient  voices,  at  a  time  when  they  were  not  on  the  bench. 
Such  a  course  was  unprecedented  in  the  history  of  the  court, 
and  could  produce  no  change  in  the  opinion  of  those  by  whom 
the  former  judgment  was  rendered.  It  was,  however,  not  so 
entirely  without  precedent  as  he  seems  to  have  supposed.  An- 
other and  noteworthy  instance  may  be  found  in  the  case  which 
made  the  name  of  Dred  Scott  historical.  The  act  of  1820, 
known  as  the  Missouri  Compromise,  excluding  slavery  north 
of  latitude  36°  30'  from  the  territory  acquired  from  France 
by  the  Louisiana  purchase,  was  passed  in  a  spirit  of  concilia- 
tion to  adjust  the  issue  between  North  and  South,  and  ap- 
portion the  national  domain  fairly  between  both  sections.^ 
Generally  regarded  as  a  buttress  of  the  Union,  it  stood  until 
1857,  when  it  was  declared  unconstitutional  by  all  the  judges 
of  the  Supreme  Court  except  Curtis  and  McLean.  As  Mr. 
Blaine  observes,  in  his  historical  summary  of  the  period, 
"  This  decision  was  at  war  with  the  practice  and  traditions 
of  the  government,  ^and  set  aside  the  matured  conviction  of 
two  generations  of  conservative  statesmen."  ^  Accepted  by 
one  party  and  decried  by  the  other,  it  became  obsolete 
through  the  issue  of  the  struggle  which  it  tended  to  provoke, 
and  was  silently  overruled. 

The  Dred  Scott  Case  has  not  been  cited  or  relied  on  since 
the  Civil  War,  and  no  one  now  contends  that  Congress  have 
not  the  police  power  in  the  Territories,  which  is  withheld 
from  them  in  the  States.^  It  cannot  be  maintained,  in  view 
of  this  change  of  opinion  in  the  community  and  on  the  bench, 
that  the  Supreme  Court  can  never  err,  or  that  its  mistakes 
may  not  be  corrected.  What  may  justly  be  remarked  is  that, 
numerous,  intricate,  and  important  as  are  the  questions  sub- 
mitted to  the  tribunal  of  last  resort,  it  has  in  the  main  ad- 
hered to  the  key-note  struck  by  the  hand  of  Cliief- Justice 
Marshall,  and  has  seldom  had  occasion  to  retrace  its  steps. 
That  this  can  be  said  in  a  democratic  country,  after  the  lapse 
of  a  hundred  years,  and  notwithstanding  the  heat  and  clamor 

^  See  Twenty  Years  in  Congress,  by  James  G.  Blaine,  vol.  i.  p.  170. 
2  Twenty  Years  in  Congress,  by  James  G.  Blaine,  vol.  i.  p.  164. 
8  See  antej  p.  1146. 


1304        POWERS  RESULTING  FROM  THEIR  RELATION 

of  party  strife,  is  creditable  alike  to  the  judiciary  and  the 
people. 

It  was  contended  by  counsel  in  the  cases  above  referred 
to,  and  held  by  Chief-Justice  Chase,  that  in  the  absence  of 
the  authority  which  is  expressly  conferred  in  the  case  of 
specie,  a  law  rendering  paper  money  a  legal  tender  cannot 
be  necessary  and  proper,  in  the  sense  of  the  constitutional  re- 
quirement, because  it  simply  helps  to  render  the  government 
stronger  and  more  efficient ;  and  if  it  bears  any  relation  to  the 
enumerated  powers,  is  as  appropriate  and  as  plainly  adapted 
to  each  and  all  of  them  as  to  any  one.^  The  argument  can 
hardly  be  deemed  conclusive,  and  may  be  thought  to  point 
in  the  opposite'  direction,  because  a  necessity  springing  from 
several  duties  is  more  peremptory  than  if  it  arose  from  one. 
A  remedy  which  invigorates  the  whole  body  may  be  specifi- 
cally adapted  to  a  particular  ailment ;  and  money  is  not  less 
the  nerve  of  war  because  it  is  needful  for  the  other  functions 
of  government.  Congress  cannot  make  laws  simply  to  pro- 
vide for  the  common  defence  and  general  welfare ;  ^  but  a 
law  may  be  a  necessary  and  proper  means  of  executing  an 
express  power,  although  it  bears  the  same  relations  to  other 
powers,  and  tends  to  strengthen  the  government  as  a  whole. 

As  Mr.  Justice  Strong  observed,  in  the  opinion  already 
cited,  the  Constitution  should,  like  other  instruments,  be  con- 
strued as  a  whole,  and  each  clause  read  in  the  light  of  every 
other.  And  it  was  said  to  follow  that  any  number  of  the 
enumerated  powers  might  be  grouped,  and  the  existence  of 
an  unenumerated  power  inferred  from  all  of  them.  It  is  not 
easy,  however,  to  discern  how  an  authority  can  be  deduced 
from  a  group  of  powers,  unless  it  is  an  appropriate  means  of 
executing  some  one  of  them.  If  such  be  the  case  it  unde- 
niably exists,  and  there  is  no  need  of  grouping.  There  are 
nevertheless  certain  powers  which,  though  not  ordinarily 
essential  to  the  exercise  of  the  enumerated  powers,  are  so 
closely  related  to  one  or  more  of  them,  or  of  the  ends  for 

1  Legal  Tender  Cases,  12  Wallace,  457,  484. 

2  See  anley  p.  242. 


TO  THE   OBJECTS   OF  THE  EXPRESS  POWERS.        1305 

which  they  were  conferred,  that  they  must  be  presumed 
to  have  been  contemplated  by  the  fraraers  of  the  govern- 
ment, and  were  significantly  termed  by  Hamilton  "  resulting 
powers." 

Where  an  enumerated  power  will,  if  exercised,  have  cer- 
tain consequences,  the  intention  presumably  is  that  the 
measures  which  are  requisite  to  render  them  conducive  to 
the  public  good  shall  also  be  admissible.  Under  these  cir- 
cumstances the  implied  power  is  not  essential  to  the  execution 
of  the  express  power,  but  is  essential  to  the  use  or  enjoyment 
of  the  object  of  the  express  power,  and  therefore  as  much  a 
part  of  it  as  if  it  were  set  forth  in  terms.  The  enactment  of 
laws,  the  administration  of  justice,  the  laying  and  the  assess- 
ment of  taxes,  are  ordinarily  foreign  to  the  power  to  wage 
war,  and  certainly  do  not  fall  within  the  scope  of  the  execu- 
tive department  of  the  government ;  but  when  war  results  in 
the  conquest  and  occupation  of  the  hostile  territory,  it  may 
be  necessary  for  the  President,  or  the  generals  under  his 
command,  to  make  such  rules  as  are  requisite  to  maintain 
order  and  suppress  crime,  and  enforce  them  by  establishing 
courts,  and  even  to  make  war  feed  war  by  levying  dues  and 
customs,  and  paying  the  proceeds  into  the  military  chest.^ 
So  from  the  treaty-making  power  springs  an  authority  to 
acquire  territory  by  cession,  which  in  its  turn  implies  a  right 
to  use  all  the  powers  incident  to  sovereignty,  for  the  purpose 
of  ruling  the  province  so  obtained,  and  preventing  the  anar- 
chy that  would  otherwise  ensue. ^     The  primary  object  of  the 

1  See  ante,  pp.  945,  948;  Hamilton's  Works,  vol.  iii.  p.  184. 

2  See  The  Legal  Tender  Cases,  12  Wallace,  457. 

Such  was  the  decision  of  the  Supreme  Court  in  the  Dred  Scott  case, 
19  Howard,  303,  403,  ante,  p.  1146,  which  would  seem  to  be  just  as  re- 
gards the  origin  of  the  power,  and  the  language  of  Hamilton  points  in 
the  same  direction:  *'  It  is  not  denied  that  there  are  implied  as  well  as 
express  powers,  and  that  the  former  are  as  effectually  delegated  as  the 
latter.  And  for  the  sake  of  accuracy  it  shall  be  mentioned  that  there  is 
another  class  of  powers,  which  may  properly  be  denominated  'resulting 
powers.'  It  will  not  be  doubted  that  if  the  United  States  should  make 
a  conquest  of  any  of  the  territories  of  its  neighbors  they  would  possess 
sovereign  jurisdiction  over  the  conquered  territoiy.    This  would  be  rather 


1306  POWERS  RESULTING  FROM  THE  RIGHT 

cession  of  territory  by  one  independent  state  to  another  is 
the  transfer  of  sovereignty ;  and  it  is  the  right  and  duty  of 
the  new  sovereign  to  exercise  the  power  so  conferred.  The 
statesmen  who  framed  the  Constitution  might  have  withheld 
the  power  to  enlarge  the  bounds  of  the  United  States  by 
conquest  and  negotiation,  but  certainly  did  not  mean  in 
granting  it  to  deny  the  right  to  govern,  which,  where  a 
nation  is  concerned,  results  from  the  right  to  acquire.  Agree- 
ably to  the  weight  of  authority  the  power  of  the  government 
in  this  regard  results  from  the  above  considerations,  and  not 
from  the  clause  authorizing  Congress  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States,  which  confer 
the  right  of  property  rather  than  of  Government.^ 

We  have  here  a  power  which,  though  springing  from  the 
enumerated  powers,  extends  beyond  their  limits,  and  includes 
much  —  as,  for  instance,  the  police  power  —  which  the}'  do 
not  generally  imply.  As  Chief-Justice  Marshall  observed, 
in  legislating  for  the  Territories  "  Congress  exercise  the  com- 
bined powers  of  the  States  and  the  General  Government ; " 
and  they  may,  consequently,  make  whatever  laws  are  requi- 
site for  the  promotion  of  health,  order,  and  morals.^  So 
much  was  admitted  by  the  majority  in  the  Dred  Scott 
Case ;  but  it  was  contended  that  as  the  area  acquired 
from  France  was  held  in  trust  for  the  people  of  the  United 
States,  and  the  Constitution  recognized  the  right  of  property 
in  slaves,  the  exercise  of  that  right  could  not  be  forbidden  in 
an}^  portion  of  the  national  domain,  however  injurious  it 
might  be  to  the  inhabitants,  or  prejudicial  to  the  nation  as  a 
whole.^  Such  an  argument  is  sufficiently  refuted  by  the  de- 
cisions which  establish  that  the  privileges  conferred  by  a 

a  result  from  the  whole  mass  of  the  powers  of  the  government,  and  from 
the  nature  of  the  political  society,  than  a  consequence  of  either  of  the 
powers  specially  enumerated."    Hamilton's  Works,  vol.  iii.  p.  184. 

1  See  ante,  p.  1146. 

2  See  ante,  p.  1146;  The  American  Insurance  Co.  v.  Canter,  1  Peters, 
511;  Dred  Scott  Case,  19  Howard,  393,  442,  541. 

3  19  Howard,  393,  451. 


TO  ACQUIRE  TERRITORY  BY  TREATY.  1307 

legislative  grant  or  charter,  and  the  rights  of  property  ac- 
quired tiirough  them,  will  not  be  allowed  to  stand  in  the 
way  of  enactments  for  the  suppression  of  a  manufacture  or 
traffic  which  is  hurtful  to  the  community.^  Congress  could 
not,  by  virtue  of  the  police  power,  or  any  other  known  to 
the  Constitution,  have  emancipated  a  single  slave ;  but  they 
might  well  forbid  the  importation  of  slaves  into  a  section 
where  their  presence  would  lower  the  dignity  of  labor,  and 
hinder  the  immigration  of  the  yeomen  who  are  the  mainstay 
of  the  republic. 

I  have  dwelt  thus  long  on  the  controversy  which  was  ad- 
justed by  the  Missouri  Compromise,  reopened  by  the  Supreme 
Court,  and  closed  by  the  Civil  War,  because  it  shows  how 
unforeseen  and  far-reaching  are  the  consequences  that  may 
flow  from  the  grant  of  sovereignty  for  the  purposes  of  gov- 
ernment, even  when,  as  in  the  case  of  the  United  States,  it  is 
jealously  confined  to  certain  objects,  and  fails  where  these  are 
not  concerned.  I  may  add  that  the  right  of  the  inhabitants 
of  the  United  States  to  have  a  free  access  to  the  capital,  or 
any  quarter  of  the  country  which  it  may  be  incumbent  on 
them  to  visit  in  the  performance  of  their  obligation  as  citi- 
zens or  subjects,  results  from  the  relation  of  the  government 
to  the  people  as  defined  in  the  Constitution  as  a  whole,  rather 
than  from  any  specific  clause.^ 

There  is  this  inconvenience  in  deducing  the  right  to  issue 
paper  money  from  the  power  to  declare  war,  that,  if  there  be 
no  other  ground,  it  must  fail  on  the  return  of  peace.^  The 
notes  which  have  been  issued  during  the  war  may  continue 
to  be  a  legal  tender  notwithstanding  the  cessation  of  hostili- 
ties, but  they  cannot  be  reissued  after  they  have  been  re- 
deemed, nor  can  new  notes  be  emitted  in  their  place.  The 
question  arose  under  an  act  of  May  31,  1870,  ch.  146,  provid- 
ing that  "  whenever  United  States  notes  are  redeemed,  or 
come  into  the  treasury  from  any  source,  they  shall  not  be 

1  See  ante,  pp.  608-614,  773. 

2  Crandall  v.  Nevada,  6  Wallace,  35.     See  ante,  p.  475. 

*  See  Juillard  v.  Greenman,  reported  as  the  Legal  Tender  Case,  110 
U.  S.  421,  432. 

VOL.  II.  —  42 


1308  UNITED   STATES   NOTES  MAY  BE  MADE 

retained  or  cancelled,  but  shall  be  reissued  and  kept  in  cir- 
culation." It  was  ably  contended  for  the  plaintiff  in  error 
that  the  tender  made  by  the  defendant  in  notes  which  had 
been  reissued  under  this  act  was  invalid.  The  Civil  War 
had  since  passed  into  history,  and  there  was  no  longer  any 
justification  for  the  abnormal  powers  which  had  been  exer- 
cised during  its  continuance.  In  determining  whether  an 
act  of  Congress  is  necessary  and  proper,  regard  must  be  had 
to  the  state  of  things  at  the  time  when  it  was  passed.  The 
existence  of  a  great  public  exigency  was  the  only  ground  on 
which  the  power  to  make  paper  a  legal  tender  can  success- 
full}'^  be  maintained.  When  jurisdiction,  whether  of  a  court 
or  the  legislature,  depends  on  a  given  state  of  facts,  and 
these  do  not  exist,  the  acts  done  in  pursuance  of  it  are 
void.  With  an  overflowing  treasury,  and  abundant  means 
to  pay  off  the  existing  loans  faster  than  they  matured,  it 
could  not  be  pretended  that  the  United  States  notes  were 
reissued  with  a  view  to  borrowing,  or  essential  to  that  end. 

The  court  held  that  aside  from  the  exigency  of  war  there 
was  a  sufficient  basis  for  the  right  in  question  in  the  power 
to  borrow  and  the  duty  to  create  a  currency  in  which  the 
functions  of  the  government  could  be  carried  on.  Under  the 
former  head  Congress  might  not  only  give  notes  or  bonds  for 
the  amount  lent,  but  make  them  payable  to  bearer  and  re- 
ceivable for  all  debts  due  the  government.  So  much  was 
maintained  or  admitted  by  all  the  judges  in  the  Legal  Ten- 
der Cases,  and  must  be  regarded  as  no  longer  open  to  dis- 
pute. The  constitutional « obligation  to  provide  a  currency 
for  the  whole  country  was  equally  unquestionable,  and  might 
be  carried  into  effect  by  making  the  bills  of  credit  issued  for 
borrowed  money  a  legal  tender.  The  right  to  create  paper 
money  by  such  means  was  everywhere  regarded  as  incident  to 
sovereignty  when  the  Constitution  was  framed  and  adopted, 
and  not  being  forbidden  was  impliedly  contained  in  the  power 
to  borrow. 

It  is  not  easy  to  discern  which  of  the  various  powers  re- 
ferred to  in  the  course  of  this  opinion  were  mainly  relied  on 
in  reaching   the   conclusion  ;   but   the   argument  succinctly 


A  LEGAL  TENDER  DURING  PEACE. 


1309 


■  stated  appears  to  be  that  since  it  is  the  right  and  duty  of 
Congress  to  create  a  currency,  in  view  of  the  numerous  func- 
tions which  cannot  be  fulfilled  without  such  aid,  the  bills 
of  credit  emitted  under  the  power  to  contract  loans,  may 
be  converted  into  lawful  money  by  rendering  them  a  legal 
tender  by  virtue  of  the  sovereignty  which  belongs  to  the 
United  States  within  the  scope  of  the  enumerated  powers 
as  fully  as  to  any  government  on  earth.^  So  read,  the  judg- 
ment avoids  the  alarming  proposition  that  Congress  may  levy 
forced  loans,  and  rests  on  the  implied  right  to  create  the  cur- 
rency, which  is  as  essential  to  the  functions  of  the  govern- 
ment as  the  circulation  of  the  blood  is  to  the  human  frame. 
As  counsel  justly  observed  in  arguing  against  the  validity  of 
the  Legal  Tender  Acts,  "the  government  of  the  United 
States  has  no  inherent  sovereignty,  but  only  such  sovereign 
powers  as  are  delegated  to  it  by  a  written  Constitution,  which 
carefully  and  expressly  declared  that  all  powers  not  conferred 
by  that  instrument  were  reserved  to  the  State  and  the 
people."  2  But  it  is  also  true  that  the  powers  so  delegated 
are  sovereign  within  their  scope,  and  imply  the  right  to  use 
every  means  that  is  incident  to  sovereignty,  and  proper  for 
carrying  it  into  effect.  This  is  not  merely  inferential.  "  Sov- 
ereignty "  is  simply  an  expressive  term  for  "supreme  ;  "  and 
it  is  expressly  declared  that  "  the  Constitution  of  the  United 
States,  the  laws  made  in  pursuance  thereof,  and  all  treaties 
made  or  which  shall  be  made  under  the  authority  of  the 
United  States,"  shall  be  the  supreme  law  of  the  land.  "  The 
power  which  can  create  the  supreme  law  of  the  land  in  any 
case  is  doubtless  sovereign  as  to  such  case."  ^ 

^  See  ante,  p.  95. 

2  Juillard  v.  Greenman,  110  U.  S.  421,  435. 

8  Hamilton's  Works,  vol.  iii.  p.  182.    New  York  and  London,  1885. 

''  It  appears  to  the  Secretary  of  the  Treasury  that  this  general  prin- 
ciple is  inherent  in  the  very  definition  of  government,  and  essential  to 
every  step  of  the  progress  to  be  made  by  that  of  the  United  States,  viz., 
that  every  power  vested  in  a  government  is  in  its  nature  sovereign,  and 
includes,  by  force  of  the  term,  a  right  to  employ  all  the  means  requisite 
and  fairly  applicable  to  the  attainment  of  the  ends  of  such  power  which 
are  not  precluded  by  restrictions  and  exceptions  specified  in  the  Constitu- 


1310   "sovereign"  synonymous  with 

tion,  or  not  immoral,  or  not  contrary  to  the  essential  of  political  society. 
This  principle,  in  its  application  to  government  in  general,  would  be  ad- 
mitted as  an  axiom ;  and  it  will  be  incumbent  upon  those  who  may  incline 
to  deny  it  to  prove  a  distinction,  and  to  show  that  a  rule  which,  in  the 
general  system  of  things,  is  essential  to  the  preservation  of  the  social 
order  is  inapplicable  to  the  United  States.  The  circumstances  that  the 
powers  of  sovereignty  are  in  this  country  divided  between  the  national 
and  State  governments  does  not  afEord  the  distinction  required.  It  does 
not  follow  from  this  that  each  of  the  portion  of  powers  delegated  to  the 
one  or  the  other  is  not  sovereign  with  regard  to  its  proper  objects.  It  will 
only  follow  from  it  that  each  has  sovereign  power  as  to  certain  things, 
and  not  as  to  other  things.  To  deny  that  the  government  of  the  United 
States  has  sovereign  power  as  to  its  declared  purposes  and  trusts,  because 
its  power  does  not  extend  to  all  cases,  would  be  equally  to  deny  that  the 
State  governments  have  sovereign  power  in  any  case  because  their  power 
does  not  extend  to  every  case.  The  tenth  section  of  the  First  Article  of 
the  Constitution  exhibits  a  long  list  of  very  important  things  which  they 
may  not  do.  And  thus  the  United  States  would  furnish  the  singular 
spectacle  of  a  political  society  without  sovereignty,  or  of  a  people  gov- 
erned without  government.  If  it  would  be  necessary  to  bring  proof  of  a 
proposition  so  clear  a?  that  which  affirms  that  the  powers  of  the  federal 
government  as  to  its  objects  were  sovereign,  there  is  a  clause  of  its  Con- 
stitution which  would  be  decisive.  It  is  that  which  declares  that  the  Con- 
stitution and  the  laws  of  the  United  States  made  in  pursuance  of  it,  and 
all  treaties  made  or  which  shall  be  made  under  their  authority,  shall  be 
the  supreme  law  of  the  land.  The  power  which  can  create  the  '  supreme 
law  of  the  land'  in  any  case,  is  doubtless  sovereign  as  to  such  case." 
Opinion  as  to  the  Constitutionality  of  the  Bank  of  the  United  States, 
Hamilton's  Works,  vol.  iii.  p.  183, 


AKTICLES  OF  CONFEDERATION 


And  perpetual  union  between  the  states  of  New  Hampshire,  Massa- 

lusetts  Ba}',  Rhode  Island  and  Providence  Plantations,  Connecti- 
cut, New  York,  New  Jersej',  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia. 

Article  I.  The  st\'le  of  this  Confederacy  shall  be,  "  The  United 
States  of  America." 

Article  II.  Each  state  retains  its  sovereignty,  freedom,  and  in- 
dependence, and  ever}'  power,  jurisdiction,  and  right,  which  is  not 
by  this  Confederation  expressly  delegated  to  the  United  States  in 
Congress  assembled. 

Article  III.  The  said  states  hereb}'  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defence,  the 
security  of  their  liberties,  and  their  mutual  and  general  welfare ; 
binding  themselves  to  assist  each  other  against  all  force  offered  to, 
or  attacks  made  upon  them,  or  any  of  them,  on  account  of  religion, 
sovereignty,  trade,  or  an}'  other  pretence  whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  states  in  this 
Union,  the  free  inhabitants  of  each  of  these  states,  paupers,  vaga- 
bonds, and  fugitives  from  justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  several  states  ;  and 
the  people  of  each  state  shall  have  free  ingress  and  regress  to  and 
from  any  other  state ;  and  shall  enjo}'  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impositions,  and 
restrictions  as  the  inhabitants  thereof  respectivel}' ;  provided,  that 
such  restriction  shall  not  extend  so  far  as  to  prevent  the  removal  of 
property  imported  into  any  state  to  any  other  state,  of  which  the 
owner  is  an  inhabitant ;  provided  also,  that  no  imposition,  duties, 
or  restriction  shall  be  laid  by  any  state  on  the  property  of  the 
United  States,  or  either  of  them. 


1312  ARTICLES   OF  CONFEDERATION. 

If  any  person  guilty  of,  or  charged  with  treason,  felony,  or  other 
high  misdemeanor,  in  anj^  state,  shall  flee  from  justice,  and  be 
found  in  any  of  the  United  States,  he  shall,  upon  demand  of  the 
governor  or  executive  power  of  the  state  from  which  he  fled,  be 
delivered  up  and  removed  to  the  state  having  jurisdiction  of  his 
oflfence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and  magis- 
trates of  ever}'  other  state. 

Article  V.  For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  ap- 
pointed in  such  manner  as  the  legislature  of  each  state  shall  direct, 
to  meet  in  Congress  on  the  first  Monday  in  November,  in  every 
3'ear,  with  a  power  reserved  to  each  state  to  recall  its  delegates,  or 
any  of  them,  at  an}-  time  within  the  year,  and  send  others  in  their 
stead  for  the  remainder  of  the  3'ear. 

No  state  shall  be  represented  in  Congress  bj-  less  than  two,  nor 
b}^  more  than  seven  members ;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years,  in  an}"  term  of  six 
years ;  nor  shall  any  person,  being  a  delegate,  be  capable  of  hold- 
ing any  office  under  the  United  States,  for  which  he,  or  another  for 
his  benefit,  receives  an}'  salary,  fees,  or  emolument  of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  a  meeting  of  the 
states,  and  w^hile  they  act  as  members  of  the  committee  of  the 
states. 

In  determining  questions  in  the  United  States  in  Congress  as- 
sembled, each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  Congress ;  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonment  during  the  time  of  their  going  to,  and 
from,  and  attending  on  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Article  VI.  No  state,  without  the  consent  of  the  United  States 
in  Congress  assembled,  shall  send  any  embassy  to,  or  receive  any 
embassy  from,  or  enter  into  any  conference,  agreement,  alliance, 
or  treaty  with  any  king,  prince,  or  state ;  nor  shall  any  person, 
holding  any  office  of  profit  or  trust  under  the  United  States,  or  any 


ARTICLES   OF   CONFEDERATION. 


1313 


of  them,  accept  of  any  present,  emolument,  office,  or  title  of  any 
kind  whatever  from  any  king,  prince,  or  foreign  state ;  nor  shall 
the  United  States  in  Congress  assembled,  or  any  of  them,  grant 
any  title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  confederation, 
or  alliance  whatever  between  them,  without  the  consent  of  the 
United  States  in  Congress  assembled,  specifying  accurately  the 
purposes  for  which  the  same  is  to  be  entered  into,  and  how  long  it 
shall  continue. 

No  state  shall  la}'  any  imposts  or  duties,  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United  States 
in  Congress  assembled  with  any  king,  prince,  or  state,  in  pursuance 
of  any  treaties  already  proposed  by  Congress  to  the  Courts  of 
France  and  Spain. 

No  vessels  of  war  shall  be  kept  up,  in  time  of  peace,  by  any 
state,  except  such  number  onl}^  as  shall  be  deemed  necessary,  by 
the  United  States  in  Congress  assembled,  for  the  defence  of  such 
state  or  its  trade  ;  nor  shall  any  body  of  forces  be  kept  up  by  any 
state,-  in  time  of  peace,  except  such  number  onh'  as,  in  the  judg- 
ment of  the  United  States  in  Congress  assembled,  shall  be  deemed 
requisite  to  garrison  the  forts  necessary  for  the  defence  of  such 
state :  but  ever}-  state  shall  always  keep  up  a  well-regulated  and 
disciplined  militia,  sufficiently  armed  and  accoutred ;  and  shall  pro- 
vide and  constantly  have  ready  for  use,  in  public  stores,  a  due 
number  ot  field-pieces  and  tents,  and  a  proper  quantity  of  arms, 
ammunition,  and  camp  equipage. 

No  state  shall  engage  in  any  war,  without  the  consent  of  the 
United  States  in  Congress  assembled,  unless  such  state  be  actually 
invaded  by  enemies,  or  shall  have  received  certain  advice  of  a 
resolution  being  formed  by  some  nation  of  Indians  to  invade  such 
state,  and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay  till 
the  United  States  in  Congress  assembled  can  be  consulted ;  nor 
shall  any  state  grant  commissions  to  any  ship  or  vessels  of  war,  nor 
letters  of  marque  or  reprisal,  except  it  be  after  a  declaration  of 
war  by  the  United  States  in  Congress  assembled ;  and  then  only 
against  the  kingdom  or  state,  and  the  subjects  thereof,  against 
which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States  in  Congress  assembled, 


1314  ARTICLES  OF  CONFEDERATION. 

unless  such  state  be  infested  by  pirates,  in  which  case  vessels  of 
war  ma}^  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the 
danger  shall  continue,  or  until  the  United  States  in  Congress  as- 
sembled shall  determine  otherwise. 

Article  VII.  Wlien  land  forces  are  raised  b}"  an}*  state  for  the 
common  defence,  all  officers  of  or  under  the  rank  of  colonel  shall  be 
appointed  by  the  legislature  of  each  state  respectively,  by  whom 
such  forces  shall  be  raised,  or  in  such  manner  as  such  state  shall 
direct ;  and  all  vacancies  shall  be  filled  up  by  the  state  which  first 
made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  exi^enses  that 
shall  be  incurred  for  the  common  defence  or  general  welfare,  and 
allowed  by  the  United  States  in  Congress  assembled,  shall  be  de- 
fraj'ed  out  of  a  common  treasuiy  which  shall  be  supplied  b}'  the 
several  states  in  proportion  to  the  value  of  all  land  within  each 
state,  granted  to  or  surveyed  for  any  person  as  such  land  and  the 
buildings  and  improvements  thereon  shall  be  estimated,  according 
to  such  mode  as  the  United  States  in  Congress  assembled  shall, 
from  time  to  time,  direct  and  appoint.  The  taxes  for  paying  that 
proportion  shall  be  laid  and  levied  b}'  the  authority  and  direction 
of  the  legislatures  of  the  several  states,  within  the  time  agreed 
upon  b}'  the  United  States  in  Congress  assembled. 

Article  IX.  The  United  States,  in  Congress  assembled,  shall 
have  the  sole  and  exclusive  right  and  power  of  determining  on 
peace  and  war,  except  in  the  cases  mentioned  in  the  sixth  Article : 
Of  sending  and  receiving  ambassadors  :  Entering  into  treaties  and 
alliances,  provided  that  no  treaty  of  commerce  shall  be  made  where- 
by the  legislative  power  of  the  respective  states  shall  be  restrained 
from  imposing  such  imposts  and  duties  on  foreigners  as  their  own 
people  are  subjected  to,  or  from  prohibiting  the  exportation  or  im- 
portation of  any  species  of  goods  or  commodities  whatever  :  Of  es- 
tablishing rules  for  deciding,  in  all  cases,  what  captures  on  land  or 
water  shall  be  legal ;  and  in  what  manner  prizes,  taken  by  land 
or  naval  forces  in  the  service  of  the  United  States,  shall  be  divided 
or  appropriated :  Of  granting  letters  of  marque  and  reprisal  in 
times  of  peace :  Appointing  courts  for  the  trial  of  piracies  and  fel- 
onies committed  on  the  high  seas ;  and  establishing  courts  for  re- 
ceiving and  determining,  finally,  appeals  in  all  cases  of  captures ; 


ARTICLES  OF  CONFEDERATION. 


1315 


provided  that  no  member  of  Congress  shall  be  appointed  a  judge  of 
an}'  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last 
resort,  on  appeal,  in  all  disputes  and  differences  now  subsisting,  or 
that  hereafter  ma^^  arise  between  two  or  more  states  concerning 
boundarj^  jurisdiction,  or  any  other  cause  whatever  ;  which  author- 
ity shall  always  be  exercised  in  the  manner  following :  Whenever 
the  legislative  or  executive  authoritj',  or  lawful  agent  of  any  state, 
in  controversy  with  another,  shall  present  a  petition  to  Congress, 
stating  the  matter  in  question,  and  praying  for  a  hearing,  notice 
thereof  shall  be  given,  by  order  of  Congress,  to  the  legislative  or 
executive  authority  of  the  other  state  in  controvers}-  ;  and  a  day 
assigned  for  the  appearance  of  the  parties  by  their  lawful  agents, 
"who  shall  then  be  directed  to  appoint,  by  joint  consent,  commis- 
sioners or  judges  to  constitute  a  court  for  hearing  and  determining 
the  matter  in  question:  but  if  they  cannot  agree.  Congress  shall 
name  three  persons  out  of  each  of  the  United  States ;  and  from  the 
list  of  such  persons  each  part}'  shall  alternately  strike  out  one,  the 
petitioners  beginning,  until  the  number  shall  be  reduced  to  thir- 
teen ;  and  from  that  number  not  less  than  seven  nor  more  than 
nine  names,  as  Congress  shall  direct,  shall,  in  the  presence  of  Con- 
gress, be  drawn  out  b}'  lot ;  and  the  persons  whose  names  shall  be 
so  drawn,  or  an}'  five  of  them,  shall  be  commissioners  or  judges  to 
hear  and  finally  determine  the  controversy,  so  always  as  a  major 
part  of  the  judges,  who  shall  hear  the  cause,  shall  agree  in  the 
determination.  And  if  either  party  shall  neglect  to  attend  at  the 
day  appointed,  without  showing  reasons  which  Congress  shall  judge 
suflScient,  or  being  present  shall  refuse  to  strike,  the  Congress  shall 
proceed  to  nominate  three  persons  out  of  each  state,  and  the  Secre- 
tary of  Congress  shall  strike  in  behalf  of  such  party  absent  or 
refusing ;  and  the  judgment  and  sentence  of  the  court,  to  be  ap- 
pointed in  the  manner  before  prescribed,  shall  be  final  and  conclu- 
sive. And  if  any  of  the  parties  shall  refuse  to  submit  to  the 
authority  of  sucli  court,  or  to  appear,  or  defend  their  claim  or 
cause,  the  court  shall  nevertheless  proceed  to  pronounce  sentence 
or  judgment,  which  shall  in  like  manner  be  final  and  decisive ;  the 
judgment  or  sentence  and  other  proceedings  being,  in  either  case, 
transmitted  to  Congress  and  lodged  among  the  Acts  of  Congress 


1316  ARTICLES   OF   CONFEDERATION. 

for  the  security  of  the  parties  concerned:  Provided  that  every 
commissioner,  before  he  sits  in  judgment,  shall  take  an  oath,  to  be 
administered  b3-  one  of  the  judges  of  the  supreme  or  superior  court 
of  the  state  where  the  cause  shall  be  tried,  "  Well  and  truly  to  hear 
and  determine  the  matter  in  question,  according  to  the  best  of  his 
judgment,  without  favor,  affection,  or  hope  of  reward  :  "  Provided 
also,  that  no  state  shall  be  deprived  of  territorj^  for  the  benefit  of 
the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  states,  whose  jurisdictions, 
as  the}"  may  respect  such  lands  and  the  states  which  passed  such 
grants,  are  adjusted,  the  said  grants,  or  either  of  them,  being  at 
the  same  time  claimed  to  have  originated  antecedent  to  such  settle- 
ment of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the 
Congress  of  the  United  States,  be  finally  determined,  as  near  as 
maj^  be,  in  the  same  manner  as  is  before  prescribed  for  de- 
ciding disputes  respecting  territorial  jurisdiction  between  different 
states. 

The  United  States,  in  Congress  assembled,  shall  also  have  the  sole 
and  exclusive  right  and  power  of  regulating  the  alloy  and  value 
of  coin  struck  by  their  own  authority,  or  by  that  of  the  respective 
states :  Fixing  the  standard  of  weights  and  measures  throughout 
the  United  States :  Regulating  the  trade  and  managing  all  affairs 
with  the  Indians,  not  members  of  any  of  the  states  ;  provided  that 
the  legislative  right  of  any  state  within  its  own  limits  be  not  in- 
fringed or  violated :  Estabhshing  and  regulating  post-offices,  from 
one  state  to  another,  throughout  all  the  United  States,  and  exact- 
ing such  postage  on  the  papers  passing  through  the  same  as  may 
be  requisite  to  defra}"  the  expenses  of  the  said  office :  Appointing 
all  officers  of  the  land  forces  in  the  service  of  the  United  States, 
excepting  regimental  officers :  Appointing  all  the  officers  of  the 
naval  forces,  and  commissioning  all  officers  whatever  in  the  service 
of  the  United  States :  Making  rules  for  the  government  and  regu^ 
lation  of  the  land  and  naval  forces,  and  directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority 
to  appoint  a  committee,  ^o  sit  in  the  recess  of  Congress,  to  be  de- 
nominated A  COMMITTEE  'JF  THE  STATES,  and  to  cousist  of  ouc  dele- 
gate from  each  state,  and  to  appoint  such  other  committees  and 


ARTICLES   OP  CONFEDERATION. 


131T 


civil  ofl3cers  as  may  be  necessary  for  managing  the  general  affairs 
of  the  United  States  under  their  direction  :  To  appoint  one  of  their 
number  to  preside  ;  provided  that  no  person  be  allowed  to  serve  in 
the  office  of  president  more  than  one  year  in  any  term  of  three 
years  :  To  ascertain  the  necessary  sums  of  money  to  be  raised  for 
the  service  of  the  United  States,  and  to  appropriate  and  apply  the 
same  for  defraying  the  public  expenses  :  To  borrow  money  or  emit 
bills  on  the  credit  of  the  United  States,  transmitting  every  half 
year  to  the  respective  states  an  account  of  the  sums  of  money  so 
borrowed  or  emitted :  To  build  and  equip  a  navy :  To  agree  upon 
the  number  of  land  forces,  and  to  make  requisitions  from  each  state 
for  its  quota,  in  proportion  to  the  number  of  white  inhabitants  in 
such  state,  which  requisition  shall  be  binding ;  and  thereupon  the 
legislature  of  each  state  shall  appoint  the  regimental  officers,  raise 
the  men,  and  clothe,  arm,  and  equip  them,  in  a  soldierlike  manner, 
at  the  expense  of  the  United  States ;  and  the  officers  and  men  so 
clothed,  armed,  and  equipped,  shall  march  to  the  place  appointed, 
and  within  the  time  agreed  on  by  the  United  States  in  Congress  as- 
sembled :  but  if  the  United  States,  in  Congi-ess  assembled,  shall, 
on  consideration  of  circumstances,  judge  proper  that  any  state 
should  not  raise  men,  or  should  raise  a  smaller  number  than  its 
quota,  and  that  any  other  state  should  raise  a  greater  number  of 
men  than  its  quota  thereof,  such  extra  number  shall  be  raised,  offi- 
cered, clothed,  armed,  and  equipped  in  the  same  manner  as  the 
quota  of  such  state  ;  unless  the  legislature  of  such  state  shall  judge 
that  such  extra  number  cannot  be  safely  spared  out  of  the  same ; 
in  which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as 
many  of  such  extra  number  as  they  judge  can  be  safely  spared : 
and  the  officers  and  men  so  clothed,  armed,  and  equipped,  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on  by  the 
United  States  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never  engage  in 
a  war ;  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace ; 
nor  enter  into  any  treaties  or  alliances  ;  nor  coin  money  ;  nor  reg- 
ulate the  value  thereof;  nor  ascertain  the  sums  and  expenses  ne- 
cessary for  the  defence  and  welfare  of  the  United  States,  or  any 
of  them ;  nor  emit  bills ;  nor  borrow  money  on  the  credit  of  the 
United  States ;  nor  appropriate  money ;  nor  agree  upon  the  num- 


1318  ARTICLES   OF   CONFEDERATION. 

ber  of  vessels  of  war  to  be  built  or  purchased,  or  the  number  of 
land  or  sea  forces  to  be  raised ;  nor  appoint  a  Commander-in-Chief 
of  the  arm}'  or  navy ;  unless  nine  states  assent  to  the  same ;  nor 
shall  a  question  on  any  other  point,  except  for  adjourning  from  day 
to  day,  be  determined,  unless  by  the  votes  of  a  majority  of  the 
United  States  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  j'ear,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months ;  and  shall  publish  the  Journal  of 
their  proceedings  monthly,  except  such  parts  thereof  relating  to 
treaties,  alliances,  or  military  operations,  as  in  their  judgment  re- 
quire secrecy ;  and  the  yeas  and  nays  of  the  delegates  of  each  state 
on  any  question  shall  be  entered  on  the  Journal,  when  it  is  desired 
by  any  delegate ;  and  the  delegates  of  a  state,  or  any  of  them,  at 
his  or  their  request  shall  be  furnished  with  a  transcript  of  the  said 
Journal,  except  such  parts  as  are  above  excepted,  to  lay  before  the 
legislatures  of  the  several  states. 

Article  X.  The  committee  of  the  states,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such  of 
the  powers  of  Congress  as  the  United  States  in  Congress  assem- 
bled, by  the  consent  of  nine  states,  shall  from  time  to  time  think 
expedient  to  vest  them  with ;  provided  that  no  power  be  delegated 
to  the  said  committee,  for  the  exercise  of  which,  b}'  the  Articles  of 
Confederation,  the  voice  of  nine  states  in  the  Congress  of  the 
United  States  assembled  is  requisite. 

Article  XI.  Canada,  acceding  to  this  Confederation,  and  join- 
ing in  the  measures  of  the  United  States,  shall  be  admitted  into, 
and  entitled  to  all  the  advantages  of  this  Union ;  but  no  other 
colony  shall  be  admitted  into  the  same,  unless  such  admission  be 
agreed  to  b}'  nine  states. 

Article  XII.  All  bills  of  credit  emitted,  monej's  bori'owed, 
and  debts  contracted  b}*,  or  under  the  authority  of  Congress,  be- 
fore the  assembling  of  the  United  States,  in  pursuance  of  the 
present  Confederation,  shall  be  deemed  and  considered  as  a 
charge  against  the  United  States,  for  payment  and  satisfaction 
whereof  the  said  United  States,  and  the  public  faith,  are  hereby 
solemnly  pledged. 


ARTICLES   OF  CONFEDERATION. 


1319 


Article  XIII.  Everj^  state  shall  abide  by  the  determinations  of 
the  United  States  in  Congress  assembled,  on  all  questions  which 
by  this  Confederation  are  submitted  to  them.  And  the  Articles  of 
this  Confederation  shall  be  inviolabl}*  observed  by  every  state  ;  and 
the  Union  shall  be  perpetual.  Nor  shall  any  alteration  at  any  time 
hereafter  be  made  in  any  of  them,  unless  such  alteration  be  agreed 
to  in  a  Congress  of  the  United  States,  and  be  afterwards  confirmed 
by  the  legislatures  of  every  state. 

And  whereas,  it  hath  pleased  the  Great  Governor  of  the  world 
to  incline  the  hearts  of  the  legislatures  we  respectively  represent  in 
:  Congress,  to  approve  of,  and  to  authorize  us  to  ratify  the  said  Ar- 
ticles of  Confederation  and  perpetual  Union  :  Know  3'e  that  we  the 
undersigned  delegates,  b}^  virtue  of  the  power  and  authority  to  us 
given  for  that  purpose,  do  by  these  presents,  in  the  name  and  in 
behalf  of  our  respective  constituents,  full}'  and  entirely  ratify  and 
confirm  each  and  every  of  the  said  Articles  of  Confederation  and 
perpetual  Union,  and  all  and  singular  the  matters  and  things 
therein  contained.  And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall  abide  by  the 
determinations  of  the  United  States  in  Congress  assembled,  on  all 
questions,  which  b}'  the  said  Confederation  are  submitted  to  them ; 
and  that  the  articles  thereof  shall  be  inviolably  observed  by  the 
states  we  respectively  represent ;  and  that  the  Union  shall  be  per- 
petual. In  witness  whereof  we  have  hereunto  set  our  hands  in 
Congress.  Done  at  Philadelphia,  in  the  state  of  Penns3'lvania, 
the  9th  day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the  3d 
year  of  the  Independence  of  America. 


CONSTITUTION  OF   THE  UNITED  STATES 
OF    AMERICA. 


[The  numbers  in  brackets  refer  to  the  pages  of  this  book.] 


We,  the  people  of  the  United  States  [70,  74,  76,  86-93],  in  or- 
der to  form  a  more  perfect  Union,  establish  justice,  insure  domestic 
tranquillit}^  provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  oui*selves  and  our 
posterity,  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America  [100]. 

ARTICLE  I. 

Section  1.  —  1.  All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives. 

Section  2.  —  1.  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of  the  several 
states,  and  the  electors  in  each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  state 
legislature  [33-35,  520]. 

2.  No  person  shall  be  a  Representative  who  shall  not  have  at- 
tained to  the  age  of  twenty-five  j'ears,  and  been  seven  j^ears  a  citi- 
zen of  the  United  States,  and  who  shall  not,  when  elected,  be  an 
inhabitant  of  that  state  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  Union,  accord- 
ing to  their  respective  numbers,  which  shall  be  determined  by  add- 
ing to  the  whole  number  of  free  persons,  including  those  bound  to 
service  for  a  term  of  years,  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons  [249].     The  actual  enumeration  shall 


CONSTITUTION  OF  THE  UNITED   STATES.  1321 

be  made  within  three  years  after  the  first  meeting  of  the  Congress 
of  the  United  States,  and  within  everj'  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The  number 
of  Kepresentatives  shall  not  exceed  one  for  every  thirty  thousand, 
but  each  state  shall  have  at  least  one  Representative ;  and,  until 
such  enumeration  shall  be  made,  the  state  of  New  Hampshire  shall 
be  entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island  and 
Providence  Plantations  one,  Connecticut  five,  New  York  six.  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Vir- 
ginia ten,  North  Carolina  five,  South  Carolina  five,  and  Georgia 
three. 

4.  When  vacancies  happen  in  the  representation  from  any  state, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  Speaker  and 
other  oflficers ;  and  shall  have  the  sole  power  of  impeachment 
[210,  855]. 

Section  3.  —  1.  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  state,  chosen  by  the  legislature 
thereof,  for  six  3'ears ;  and  each  Senator  shall  have  one  vote  [34, 
76,  209,  520]. 

2.  Immediately  after  they  shall  be  assembled  in  consequence  ot 
the  first  election,  the}'  shall  be  divided,  as  equally  as  may  be,  into 
three  classes.  The  seats  of  the  Senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  j'ear ;  of  the  second  class, 
at  the  expiration  of  the  fourth  year ;  and  of  the  third  class,  at  the 
expiration  of  the  sixth  year;  so  that  one-third  may  be  chosen 
every  second  year ;  and  if  vacancies  happen  by  resignation,  or 
otherwise,  during  the  recess  of  the  legislature  of  any  state,  the  ex- 
ecutive thereof  may  make  temporarj^  appointments  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  age  of  thirt}-  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
state  for  which  he  shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be  equally 
divided. 


1322  CONSTITUTION  OF  THE   UNITED  STATES. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a  Presi- 
dent jt??'0  tempore^  in  the  absence  of  the  Vice-President,  or  when  he 
shall  exercise  the  office  of  President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  trj-  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside ;  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present  [210]. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and  enjoy 
an}'  office  of  honor,  trust,  .or  profit,  under  the  United  States ; 
but  the  party  convicted  shall,  nevertheless,  be  Uable  and  subject 
to  indictment, .  trial,  judgment,  and  punishment,  according  to 
law. 

Section  4.  —  1.  The  times,  places,  and  manner,  of  holding  elec- 
tions for  Senators  and  Representatives,  shall  be  prescribed  in  each 
state  by  the  legislature  thereof :  but  the  Congress  may  at  any  time, 
by  law,  make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators  [520]. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall  by  law  appoint  a  diflferent  day. 

Section  5.  —  1.  Each  House  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members,  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business  ;  but  a  smaller  num- 
ber may  adjourn  from  day  to  daj^,  and  ma}'  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties,  as  each  House  ma}'  provide  [74]. 

2.  Each  House  may  determine  the  rules  of  its  proceedings,  pun- 
ish its  members  for  disorderly  behavior,  and,  with  the  concurrence 
of  two-thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings,  and,  from 
time  to  time,  publish  the  same,  excepting  such  pails  as  may,  in 
their  judgment,  require  secrecy;  and  the  yeas  and  nays  of  the 
members  of  either  House,  on  any  question,  shall,  at  the  desire  of 
one-fifth  of  those  present,  be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days 


CONSTITUTION  OF  THE  UNITED   STATES.  1323 

nor  to  any  other  place  than  that  in  which  the  two  Houses  shall 
be  sitting. 

Section  6.  —  1.  The  Senators  and  Representatives  shall  receive 

compensation  for  their  services,  to  be  ascertained  b}-  law,  and 

paid  out  of  the  treasur}^  of  the  United  States.     They  shall,  in  all 

cases,  except  treason,  felony,  and  breach  of  the  peace,  be  privileged 

from  arrest  during  their  attendance  at  the  session  of  their  respective 

[ouses,  and  in  going  to,  and  returning  from,  the  same ;  and  for 

my  speech  or  debate  in  either  House,  they  shall  not  be  questioned 

any  other  place  [854]. 

2.  No  Senator  or  Representative  shall,  during  the  time  for 
^which  he  was  elected,  be  appointed  to  an}'  civil  office  under  the 
luthority  of  the  United  States,  which  shall  have  been  created,  or 
[the  emoluments  whereof  shall  have  been  increased  during  such 
time ;  and  no  person,  holding  any  office  under  the  United  States, 
shall  be  a  member  of  either  House  during  his  continuance  in 
office. 

Section  7.  —  1.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives ;  but  the  Senate  may  propose  or  concur 
with  amendments  as  on  other  bills. 

2.  Every  bill,  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  become  a  law,  be  presented 
to  the  President  of  the  United  States  ;  if  he  approve,  he  shall  sign 
it,  but  if  not,  he  shall  return  it,  with  his  objections,  to  that  House 
in  which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two- thirds  of  that  House  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered,  and,  if  approved 
by  two-thirds  of  that  House,  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journal  of  each  House  respectively.  If  any 
bill  shall  not  be  returned  by  the  President  within  ten  days  (Sun- 
days excepted)  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return,  in  which  case 
it  shall  not  be  a  law  [211]. 
VOL.  II.  —  43 


1324  CONSTITUTION  OP  THE  UNITED  STATES. 

3.  Ever}^  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessar}-  (except 
on  a  question  of  adjournment) ,  shall  be  presented  to  the  President 
of  the  United  States ;  and  before  the  same  shall  take  effect,  shall 
be  approved  by  him,  or,  being  disapproved  by  him,  shall  be  re- 
passed by  two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  case  of 
a  bill. 

Section  8.  — The  Congress  shall  have  power 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts,  and  provide  for  the  common  defence  and  general  welfare, 
of  the  United  States  [94,  118,  241] ;  but  all  duties,  imposts,  and  ex- 
cises, shall  be  uniform  throughout  the  United  States  [72,  133,  241, 

277,  436]: 

2.  To  borrow  money  on  the  credit  of  the  United  States  [113, 
267,  1295,  1308]  : 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  states,  and  with  the  Indian  tribes  [108,  109,  249,  251,  253, 
274,  462,  470,  482,  503,  516,  1006,  1256] : 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies,  throughout  the  United  States : 

5.  To  coin  money,  regulate  the  value  thereof  [113,  114,  1232], 
and  of  foreign  coin,  and  fix  the  standard  of  weights  and  measures 
[1232]: 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States  [117,  1122,  1124,  1133]  : 

7.  To  establish  post-offices  and  post-roads  [111,  116,  244,  248, 
482]: 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing, 
for  limited  times,  to  authors  and  inventors,  the  exclusive  right  to 
their  respective  writings  and  discoveries : 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court: 

10.  To  define  and  punish  piracies  and  felonies,  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations  [1122,  1132 
1135,  1140]  : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water  [73,  905,  950- 
979]: 


CONSTITUTION  OF  THE   UNITED   STATES. 


1326 


12.  To  raise  and  support  armies  ;  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years  [113,  905, 
950]: 

13.  To  provide  and  maintain  a  navy  [905-950]  : 

14.  To  make  rules  for  the  government  and  regulation  of  the  land 
id  naval  forces  [905,  950-960,  965-979]  : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrections,  and  repel  invasions : 

16.  To  provide  for  organizing,  arming,  and  disciplining  the  mili- 
and  for  governing  such  part  of  them  as  may  be  emplojed  in  the 

irvice  of  the  United  States,  reserving  to  the  states  respectively 
le  appointment  of  the  officers,  and  the  authority  of  training  the 
lilitia,  according  to  the  discipline  prescribed  by  Congress : 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  states,  and  the  acceptance  of  Congress,  become 
the  seat  of  the  government  of  the  United  States,  and  to  exercise 

jiike  authority  over  all  places,  purchased  b}'  the  consent  of  the  legis- 
iture  of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-3'ards,  and  other  needful  buildings 
[1141-1146,  1305-1307]: 

18.  To  make  all  laws  which  shall  be  necessar}'  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  b}'  this  Constitution  in  the  Government  of  the  United  States, 
or  in  any  department  or  officer  thereof  [102-534,  1148, 1291-1302]. 

Section  9.  —  1.  The  migration  or  importation  of  such  persons, 
as  an}^  of  the  states,  now  existing,  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  Congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight ;  but  a  tax  or  duty  may  be  imposed  on 
such  importation,  not  exceeding  ten  dollars  for  each  person  [473]. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it  [97,  511,  893,  960-966]. 

3.  No  bill  of  attainder  [511,  547,  549,  551-556],  or  ex  post  facto 
law,  shall  be  passed  [511,  544,  571-575,  737]. 

4.  No  capitation,  or  other  direct  tax,  shall  be  laid,  miless  in  pro- 
portion to  the  census  or  enumeration  hereinbefore  directed  to  be 
taken  [249]. 


1326  CONSTITUTION   OF   THE  UNITED   STATES. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state.  No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  state  over  those  of  another ;  nor  shall 
vessels  bound  to,  or  from,  one  state,  be  obliged  to  enter,  clear,  or 
pay  duties,  in  another  [97]. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in  consequence 
of  appropriations  made  by  law ;  and  a  regular  statement  and  account 
of  the  receipts  and  expenditures  of  all  public  money  shall  be  pub- 
lished from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States ; 
and  no  person,  holding  any  office  of  profit  or  trust  under  them, 
shall,  without  the  consent  of  the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state. 

Section  10.  —  1.  No  state  shall  enter  into  any  treat}^  alliance, 
or  confederation;  grant  letters  of  marque  and  reprisal  [269,  1232 
-1249]  ;  coin  money  [113,  267,  511, 1232, 1249, 1299]  ;  emit  bills  of 
credit ;  make  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts  [311,  1132]  ;  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility  [97,  216,  511,  572,  746]. 

2.  No  state  shall,  without  the  consent  of  the  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws ;  and  the  net 
produce  of  all  duties  and  imposts,  laid  b}^  any  state  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the  United  States ; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the 
Congress.  No  state  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops,  or  ships  of  war,  in  time  of  peace 
enter  into  an}^  agreement  or  compact  with  another  state,  or  with  a 
foreign  power,  or  engage  in  war,  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE  11. 

Section  1.  — 1.  The  Executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America  [170-173].  He  shall  hold  his 
office  during  the  term  of  four  years,  and  together  with  the  Vice- 
President,  chosen  for  the  same  term,  be  elected  as  follows : 


CONSTITUTION   OF  THE  UNITED  STATES.  1327 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  Electors,  equal  to  the  whole  number 
of  Senators  and  Representatives,  to  which  the  state  ma}-  be  entitled 
in  the  Congress ;  but  no  Senator  or  Representative,  or  person 
holding  an  office  of  trust  or  profit,  under  the  United  States,  shall 
be  appointed  an  Elector  [219]. 

3.  The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one,  at  least,  shall  not  be  an  inhab- 
itant of  the  same  state  with  themselves.  And  they  shall  make  a 
list  of  all  the  persons  voted  for,  and  of  the  number  of  votes  for 
each ;  which  list  the}'  shall  sign  and  certif}',  and  transmit,  sealed, 
to  the  seat  of  the  Government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person  having 
the  greatest  number  of  votes  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed ;  and  if 
there  be  more  than  one,  who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  House  of  Representatives  shall  immedi- 
ately choose,  by  ballot,  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then,  from  the  five  highest  on  the  list,  the  said 
House  shall,  in  hke  manner,  choose  the  President.  But  in  choosing 
the  President,  the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote ;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the  states,  and 
a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  In 
every  case,  after  the  choice  of  the  President,  the  person  having 
the  greatest  number  of  votes  of  the  Electors  shall  be  the 
Vice-President.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  Senate  shall  choose  from  them,  by  ballot, 
the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing  the  Elec- 
tors, and  the  da}^  on  which  they  shall  give  their  votes  ;  which  day 
shall  be  the  same  throughout  the  United  States. 

5.  No  person,  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President ;  neither  shall  any  person  be 
eligible  to  that  .office,  who  shall  not  have  attained  to  the  age  of 


1328  CONSTITUTION  OF  THE  UNITED   STATES. 

thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  Vice-President,  and 
the  Congress  may  by  law  provide  for  the  case  of  removal,  death, 
resignation,  or  inability,  both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  President,  and  such  officer 
shall  act  accordinglj-,  until  the  disability  be  removed,  or  a  President 
shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his  services, 
a  compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he  shall 
not  receive,  within  that  period,  any  other  emolument  from  the 
United  States,  or  an}-  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation: 

9.  ''  I  do  solemnl}'  swear  (or  affirm),  that  I  will  faithfully  exe- 
cute the  office  of  President  of  the  United  States,  and  will,  to  the 
best  of  m}^  abilit}-,  preserve,  protect,  and  defend  the  Constitution 
of  the  United  States." 

Section  2.  —  1.  The  President  shall  be  Commander-in-Chief  of 
the  array  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  states,  when  called  into  the  actual  service  of  the  United 
States  [73,  906-914,  972-979]  ;  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive  depart- 
ments upon  an}^  subject  relating  to  the  duties  of  their  respective 
offices  [175],  and  he  shall  have  power  to  grant  reprieves  and  par- 
dons for  offences  against  the  United  States,  except  in  cases  of 
impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators 
present  concur  [15,  172-174,  439-502,  1305];  and  he  shall  nomi- 
nate, and,  by  and  with  the  advice  and  consent  of  the  Senate,  shall 
appoint  ambassadors,  other  public  ministers,  and  consuls,  judges  of 
the  Supreme  Court,  and  all  other  officers  of  the  United  States  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law  :  but  the  Congress  may  by  law  vest  the 


CONSTITUTION  OF  THE  UNITED  STATES. 


1329 


appointment  of  such  inferior  officers,  as  they  think  proper,  in  the 
President  alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments [175]. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  commis- 
sions which  shall  expire  at  the  end  of  their  next  session. 

Sections.  —  1.  He  shall,  from  time  to  time,  give  *to  the  in- 
gress information  of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  necessary  and 
expedient;  he  may,  on  extraordinary  occasions,  convene  both 
Houses,  or  either  of  them,  and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper ;  he  shall  receive  am- 
bassadors and  other  public  ministers ;  he  shall  take  care  that  the 
laws  be  faithfuU}'  executed,  and  shall  commission  all  the  officers  of 
the  United  States  [96]. 

Section  4. —  1.  The  President,  Vice-President,  and  all  civil  offi- 
cers of  the  United  States,  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes 
and  misdemeanors  [210,  855]. 


ARTICLE  in. 


Section  1.  —  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may,  from  time  to  time,  ordain  and  establish  [1167]. 
The  judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold 
their  offices  during  good  behavior,  and  shall,  at  stated  times,  re- 
ceive for  their  services  a  compensation  which  shall  not  be  dimin- 
ished during  their  continuance  in  office. 

Section  2.  —  1.  The  judicial  power  shall  extend  [988]  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitution  [28,  54, 
119,  985,  992, 1002],  the  laws  of  the  United  States  [985],  and  trea- 
ties made,  or  which  shall  be  made,  under  their  authority ;  to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls 
[985-1025] ;  to  all  cases  of  admiralty  and  maritime  jurisdiction 
[985,  1003,  1023] ;    to  controversies  to  which  the  United  States 


1330  CONSTITUTION   OF   THE   UNITED   STATES. 

shall  be  a  part}^  [985,  1023-1025]  ;  to  controversies  between  two 
or  more  states  [985-1024] ,  between  a  state  and  citizens  of  another 
state  [510,  888,  985,  1026-1041,  1065-1072],  between  citizens  of 
different  states  [985,1026,1033],  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states  [985],  and 
between  a  state,  or  the  citizens  thereof,  and  foreign  states,  citizens, 
or  subjects  [985], 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  state  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction  [992,  1025,  1167].  In  all  the 
other  cases  before  mentioned,  the  Supreme  Court  shall  have  ap- 
pellate jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions 
and  under  such  regulations  as  the  Congress  shall  make  [720,  990- 
1044,  1162-1168]. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  b}'  jur}^ ;  and  such  trial  shall  be  held  in  the  state  where  the  said 
crimes  shall  have  been  committed ;  but  when  not  committed  within 
any  state  the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed  [507,  963,  1120]. 

Section  3. — 1.  Treason  against  the  United  States  shall  consist 
onl^^  in  levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court  [1105-1122]. 

2.  The  Congress  shall  have  power  to  declare  the  punishment  of 
treason,  but  no  attainder  of  treason  shall  work  corruption  of  blood 
or  forfeiture,  except  during  the  life  of  the  person  attainted  [1122]. 

ARTICLE  IV. 

Section  1.  —  1.  Full  faith  and  credit  shall  be  given  in  each  state 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state.  And  the  Congress  may,  by  general  laws,  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings  shall  be  proved, 
and  the  effect  thereof 

Section  2.  —  1.  The  citizens  of  each  state  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  states  [276, 
462,  480,  512,  515-516]. 


CONSTITUTION  OF  THE  UNITED  STATES.  1331 

2.  A  person  charged  in  any  state  with  treason,  felonj-,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the  state  having  jurisdic- 
tion of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such  ser- 
vice or  labor  maj'  be  due. 

Sections.  —  1.  New  states  may  be  admitted  by  the  Congress 
into  this  Union  ;  but  no  new  state  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  state  ;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states,  or  parts  of  states,  without  the  con- 
sent of  the  legislatures  of  the  states  concerned  as  well  as  of  the 
Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other  prop- 
erty belonging  to  the  United  States  [1142]  ;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  prejudice  any  claims  of  the 
United  States,  or  of  any  particular  state. 

Section  4.  —  1.  The  United  States  shall  guarantee  to  every  state 
in  this  Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion;  and  on  application  of  the  legisla- 
ture, or  of  the  executive  (when  the  legislature  cannot  be  convened), 
against  domestic  violence  [124], 

ARTICLE  V. 

1.  The  Congress,  whenever  two- thirds  of  both  Houses  shall  deem 
it  necessary-,  shall  propose  amendments  to  this  Constitution,  or,  on 
the  application  of  the  legislatures  of  two-thirds  of  the  several  states, 
shall  call  a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid,  to  all  intents  and  purposes,  as  part  of  this 
Constitution,  when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  states,  or  by  conventions  in  three-fourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 
Congress :  provided  that  no  amendment  which  may  be  made  prior 


1332  CONSTITUTION   OF   THE   UNITED   STATES. 

to  the  3^ear  one  thousand  eight  hundred  and  eight,  shall,  in  any 
manner,  affect  the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  Article ;  and  that  no  state,  without  its  consent,  shall  be 
deprived  of  its  equal  sufl'rage  in  the  Senate  [30,  138,  504]. 

ARTICLE  VI. 

1.  All  debts  contracted  and  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution  as  under  the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land  ;  and  the  judges  in  every  state  shall  be 
bound  thereb}',  an3^thing  in  the  constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding  [95-130]. 

3.  The  Senators  and  Representatives  before  mentioned,  and  the 
members  of  the  several  state  legislatures,  and  all  executive  and 
judicial  oflScers,  both  of  the  United  States  and  of  the  several  states, 
shall  be  bound,  b}^  oath  or  affirmation,  to  support  this  Constitu- 
tion ;  but  no  religious  test  shall  ever  be  required  as  a  qualification 
to  any  oflSce  or  public  trust  under  the  United  States  [75]. 

ARTICLE  vn. 

1.  The  ratification  of  the  conventions  of  nine  states  shall  be  suf- 
ficient for  the  establishment  of  this  Constitution  between  the  states 
so  ratifying  the  same  [38,  46,  89]. 


AMENDMENTS  TO  THE  CONSTITUTION. 

[506,  508,  509,  1041.] 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  relig- 
ion [509,  555-556],  or  prohibiting  the  free  exercise  thereof;  or 
abridging  the  freedom  of  speech  [509,  539],  or  of  the  press  ;  or  the 
right  of  the  people  peaceably  to  assemble  [509,  533-538],  and  to 
petition  the  government  for  a  redress  of  grievances  [509]. 

ARTICLE  n. 

A  well-regulated  militia  being  necessarj-  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed  [509-521]. 

ARTICLE  m. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner ;  nor,  in  time  of  war,  but  in  a 
manner  to  be  prescribed  b}^  law  [66,  509]. 


ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated ;  and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly^  de- 
scribing the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized  [509,  831-836,  960]. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous,  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury  [507,  570,  931,  963,  1162],  except  in  cases  arising  in  the  land 


1334  AMENDMENTS   TO   THE   CONSTITUTION. 

or  naval  forces,  or  in  the  militia,  when  in  actual  service,  in  time  of 
war,  or  public  danger  [510,  931.  960-963]  ;  nor  shall  an}"  person  be 
subject,  for  the  same  offence,  to  be  twice  put  in  jeopardy  of  life  or 
limb  [510,  570]  ;  nor  shall  be  compelled,  in  an}'  criminal  case,  to  be 
a  witness  against  himself  [510,  833-836],  nor  be  deprived  of  life, 
libert}',  or  propert}',  without  due  process  of  law  [510,  706,  904, 
1281]  ;  nor  shall  private  property  be  taken  for  public  use,  without 
just  compensation  [301,  317,  331,  349,  385,  426,  510,  623,  829]. 


ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previousl}"  ascertained  b}-  law ;  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation ;  to  be  confronted  with 
the  witnesses  against  him ;  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor ;  and  to  have  the  assistance  of  counsel 
for  his  defence  [507-510,  865,  960-964.]. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved  ; 
and  no  fact,  tried  by  a  jury,  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States  than  according  to  the  rules  of  the  common 
law  [510,  866]. 

ARTICLE   Vm. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted  [510]. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people 
[94,  510]. 


AMENDMENTS  TO  THE  CONSTITUTION. 


1335 


ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively,  or  to  the  people  [94,  102,  510,  533]. 

ARTICLE  XL 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  an}'  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  state  [510, 1041, 1078]. 


ARTICLE  XII. 

1.  The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  state  with  themselves  ;  they 
shall  name  in  their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-President ;  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and 
of  all  persons  voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign,  and  certify,  and  transmit, 
sealed,  to  the  seat  of  the  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate ;  the  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted  ;  the  person 
having  the  greatest  number  of  votes  for  President  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed ;  and  if  no  person  have  such  a  majorit}*,  then, 
from  the  persons  having  the  highest  numbers,  not  exceeding  three, 
on  the  list  of  those  voted  for  as  President,  the  House  of  Represen- 
tatives shall  choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  states,  the  rep- 
resentation from  each  state  having  one  vote ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of 
the  states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.     And  if  the  House  of  Representatives  shall  not  choose  a 


1336  AMENDMENTS   TO  THE  CONSTITUTION. 

President,  whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  da}'  of  March  next  following,  then  the  Vice-Presi- 
dent shall  act  as  President,  as  in  case  of  the  death,  or  other  con- 
stitutional disability,  of  the  President  [219]. 

2.  The  person  having  the  greatest  number  of  votes  as  Vice-Presi- 
dent shall  be  the  Vice-President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed ;  and  if  no  person  have  a 
majorit}',  then,  from  the  two  highest  numbers  on  the  list,  the  Senate 
shall  choose  the  Vice-President;  a  quorum  for  the  purpose  shall 
consist  of  two-thirds  of  the  whole  number  of  Senators  ;  a  majority 
of  the  whole  number  shall  be  necessarj'  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of  Presi- 
dent, shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 


ARTICLE    XIII. 

Section  1. — Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction  [509-511,  536,  541-542]. 

Section  2.  —  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

ARTICLE  XIV. 

Section  1. — All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside  [517-519].  No 
state  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States  [216,  253,  512 
-516,  519,  526-540] ;  nor  shall  any  state  deprive  any  person  of  life, 
libert}',  or  propert}',  without  due  process  of  law  [511,  531,  534-537, 
540,  706,  904],  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws  [511,  532-534,  540]. 

Section  2.  —  Representatives  shall  be  apportioned  among  the 
several  states  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  state,  excluding  Indians  not  taxed. 
But  when  the  right  to  vote  at  any  election  for  the  choice  of  electors 


AMENDMENTS   TO  THE  CONSTITUTION.  1337 

for  President  and  Vice-President  of  the  United  States,  Represen- 
tatives in  Congress,  the  executive  and  judicial  officers  of  a  state,  or 
the  members  of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  state,  being  twenty-one  years  of  age,  and  citi- 
zens of  the  United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty- 
one  years  of  age  in  such  state. 

Section  3.  — No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or  hold  any 
office,  civil  or  militar}^,  under  the  United  States,  or  under  any  state, 
who,  having  previously  taken  an  oath,  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a  member  of  any  state 
legislature,  or  as  an  executive  or  judicial  officer  of  any  state,  to 
support  the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  comfort 
to  the  enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds 
of  each  House,  remove  such  disability. 

Section  4.  —  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  an}- 
state  shall  assume  or  pay  any  debt  or  obligation  incuiTcd  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  any  claim 
for  the  loss  or  emancipation  of  any  slave  ;  but  all  such  debts,  obli- 
gations, and  claims  shall  be  held  illegal  and  void. 

Section  5. — The  Congress  shall  have  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

Section  1.  —  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
state  on  account  of  race,  color,  or  previous  condition  of  servitude 
[511,  524-527,  540]. 

Section  2.  —  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


INDEX. 


ACTS  OF  CONGRESS.    See  Congress;  Statutes. 
ACTS  OF  THE  LEGISLATURE.     See  Statutes. 

ADMIRALTY  JURISDICTION, 

growth  of,  in  the  United  States,  1003,  1005. 

extends  beyond  the  ebb  and  flow  of  the  tide,  1004. 

includes  contracts  relating  to  navigation  and  torts  committed  on 

the  high   seas,  and  such  navigable  waters  of  the  United  States 

as  are  channels  of  foreign  and  interstate  commerce,  1004, 1014. 
does  not  include  work  done  and  materials  furnished  for  construction 

of  vessel,  1020. 
relation  to  the  power  to  regulate  foreign  and  interstate  commerce, 

1006. 
may  attach  to  vessels  trading  between  ports  of  the  same  State,  1007. 
covers  injuries  to  vessels  by  obstructions  in  the  channel,  1010. 
but  not  injuries  by  vessels  to  bridges  or  other  fixed  structures,  1015. 
exclusive  of  common  law  courts  when  proceeding  is  in  rem,  but  not 

where  it  is  in  personam,  1016. 
will  not  attach  to  vessel  that  has  been  levied  on  by  sheriff,  1017, 1019. 
death  occasioned  by  negligence,  1021. 
in  controversies  among  foreigners,  1016. 
may  be  exercised  in  rem  though  not  in  personam  for  cause  that  has 

been  brought  in  State  court,  1017. 

AGENCIES  OF   GOVERNMENT, 
municipal  corporations  are,  627. 

See  Municipal  Corporations. 
may  not  to  be  taxed  by  Congress,  265. 

AMBASSADORS.    See  Federal  Courts. 
AMBIGUITY, 

in  statutes  construed  in  favor  of  the  public,  661. 

AMENDMENTS  TO  THE  CONSTITUTION,  1333. 

method  of,  a  mark  of  the  relative  inferiority  of  the  States,  30. 
VOL.  II.  —  44- 


1340 


INDEX. 


AMENDMENTS  TO   THE  CONSTITUTION  —  con/mwerf. 

amendments  operate  as  restraints  on  the  United  States,  or  the  States, 
and  do  not  enlarge  the  powers  of  the  United  States  over  indi- 
viduals where  such  is  not  manifestly  the  intention,  533,  540. 

the  first  eleven  intended  to  limit  the  powers  of  the  federal  govern- 
ment, 506,  1041. 

the  constitutional  prohibitions  in  the  amendments  apply  exclusively 
to  the  United  States  unless  they  are  so  worded  as  to  include  the 
States,  508. 

causes  of  the  adoption  of  the  Thirteenth,  Fourteenth,  and  Fifteenth, 
509. 
APPORTIONMENT.     See  Assessmext. 

of  taxes,  315. 

taxation  and  assessment  imply,  315. 

APPRAISAL.     See  Eminent  Domain;  Taxation. 

APPROPRIATION, 

of  private  property  for  public  use,  see  Eminent  Domain. 
ARMS, 

right  to  bear,  neither  conferred  by  the  Second  Amendment  nor 
protected  by  it  against  the  States,  521. 

ARTICLES  OF  CONFEDERATION,  1311.     See  Confederation. 

ARTICLES  OF  WAR.     See  War. 

ASSESSMENT.     See  also  Taxation,  Eminent  Domain,  Highways, 

Streets. 
assessor's  duty  judicial,  312. 
owners  entitled  to  a  hearing,  315-317. 
for  local  improvements,  301-317. 
apportionment  necessary  in  cases  of,  315. 
must  be  in  proportion  to  benefits,  317. 
for  drainage,  287,  342,  3i4,  871. 

ATTAINDER.     See  Bills  of  Attainder. 

ATTORNEY  AT  LAW. 

jury  trial  not  necessary  in  proceedings  to  disbar,  873. 
AULA  REGIA, 

nature  and  functions  of,  156. 


B. 

BAGEHOT,   WALTER, 

on  the  power  of  the  crown  to  dismiss  the  ministry,  192. 

BANKRUPT  LAW, 

power  of  a  State  to  enact,  97,  532. 

Congress  may  pass,  though  rights  arising  ex  contractu  may  be  im- 
paired, 755. 


INDEX. 


1341 


BANKS, 

power  of  Congress  to  incorporate,  see  Corporations. 

States  cannot  tax  banks  incorporated  by  Congress,  355,  358. 

incorporation  of  the  Bank  of  the  United  States,  106,  1261,  1270,  1299. 

stockholders  of  national  banks  may  be  taxed  for  the  value  of  their 
shares,  259. 

taxation  of  State  bank-notes  by  general  government,  266,  271. 

disorder  and  insufficiency  of  the  currency  issued  by  State  banks,  268, 
1261. 

establishment  of  the  national  banking  system,  268,  1273,  1275. 

on  dissolution  of  a  bank  the  assets  are  charged  with  a  trust  for  its  cred- 
itors, although  the  stock  is  wholly  or  partially  held  by  a  State,  636. 

BASTARDS, 

may  be  legislatively  empowered  during  their  mothei;'s  life  to  share 
in  her  estate  at  her  death,  825,  846. 

BEARING  ARMS.     See  Arms  ;  Militia. 

BEDFORD, 

in  the  Constitutional  Convention,  34. 

BENEFITS.     See  also  Eminent  Domain;  Taxation. 

may  be  taken  into  account  in  assessment  for  local  improvements,  349. 

BILL  OF  REVIEW, 

right  to,  cannot  be  revived  after  it  has  expired  by  lapse  of  ^ime,  838. 

BILL  OF  RIGHTS, 

first  ten  amendments  in  the  nature  of,  506. 

BILLS   OF   ATTAINDER, 

definition  of,  551,  556. 

power  of  Parliament  to  pass,  213. 

inconsistent  with  the  principles  of  Magna  Charta,  544. 

passed  by  the  Colonies,  546. 

forbidden  by  the  Constitution,  547. 

prohibition  of,  cannot  be  evaded  by  inflicting  the  penalty  on  a  class 
instead  of  individually  or  providing  that  the  accused  may  exon- 
erate himself  by  oath,  552. 

distinguished  from  ex  post  facto  laws,  548. 

distinguished  from  bills  of  pains  and  penalties,  549. 

retroactive  infliction  of  disfranchisement  or  professional  disqualifica- 
tion invalid,  549. 

BILLS  OF  EXCHANGE, 

power  of  Congress  to  legislate  in  reference  to,  443. 
State  control  of  foreign,  479. 

BILLS  OF  LADING, 

State  tax  on,  for  goods  shipped  to  another  State  invalid,  480. 

BILLS  OF  PAINS  AND  PENALTIES, 

power  of  Parliament  to  pass,  213. 
distinguished  from  bills  of  attainder,  549. 


1342  INDEX. 

BONDS, 

issue  of,  by  municipalities  to  aid  manufacturers  within  their  limits, 

278. 
mandamus  may  issue  to  compel  municipal  corporations  to  levy  a  tax 

to  pay,  647,  696. 
irregularly  issued  by  municipal  corporations  may  be  confirmed  by 

legislation,  807. 

BOROUGH  AND  TOWN  REPRESENTATION, 

in  Parliament,  151, 153. 

in  the  States  General  of  France,  152. 

in  the  Castilian  Cortes,  152. 

in  Aragon,  152. 

BORROWING  MONEY.     See  also  Banks. 
constitutional  power  of  Congress,  1250-1253. 
relation  of  to  making  paper  money  a  legal  tender,  1251-1255. 
does  not  authorize  forced  loans,  1251-1253,  1308. 

BRIBERY, 

in  England  and  the  United  States,  205,  208,  229. 

statutory  grant  cannot  be  set  aside  because  it  was  procured  by,  736. 

BRIDGES, 

erection  of,  over  navigable  rivers,  457,  487. 

like  ferries,  within  the  police  power  of  the  States  as  incident  to  high- 
ways, 497. 

may  be  abated  by  federal  courts  where  hindering  navigation,  490. 

Congress  may  and  the  States  may  not  sanction  such  bridges,  457, 
487,  497. 

grant  of  exclusive  right  to  build,  354,  609,  783. 

subject  to  right  of  eminent  domain,  354. 
BUCHANAN, 

message  of  December  3,  1860,  on  Federal  coercion  of  a  seceding 
State,  61,  62. 

BURIALS, 

restriction  on,  under  the  police  power,  617,  652. 
nature  of  interest  in  burial  lots,  651. 


c. 

CABINET  OFFICERS, 

the  question  of  making  them  responsible  to  Congress  considered,  175. 
See  Parliamentary  Government, 
CALHOUN, 

relation  to  the  doctrine  of  nullification,  134. 

CAMDEN,   LORD, 

on  unreasonable  searches  and  seizures,  831-833. 
CARRIERS.     See  Railroads. 

regulation  of  rates  of,  478,  611,  667,  768,  771. 


INDEX. 


1343 


CAUCUS, 

nomination  by,  220. 

CEMETERIES, 

furtiier  use  of,  may  be  prohibited  under  police  power,  617,  652. 

CHANGE   OF   GRADE   OF  STREETS.    See  also  Streets 
compensation  for,  394,  401. 
in  Pennsylvania  compensation  allowed  by  statute,  420. 

CHARTER.    See  Corporations. 
CHATHAM,   EARL  OF, 

on  the  character  of  the  American  colonists,  6 
reference  to  America  as  a  unit,  12. 
on  the  right  of  Americans  to  resist,  66. 
^    efforts  for  reform,  202. 

on  the  distinction  between  the  legislative  and  judicial  functions,  545. 
on  regulation  of  commerce  as  distinguished  from  taxation,  459. 
CHOSES  IN  ACTION, 

are  property,  824,  827, 1280. 

CITIZENS.     See  also  Federal  Courts. 

discrimination  against  citizens  of  other  States  in  taxation,  253,  323. 
corporations  chartered  by  other  States,  276,  462,  480,  515. 
citizenship,  how  acquired,  516. 
citizens  of  each  State  may  become  citizens  of  every  other  by  residence, 

'517,  519. 
citizenship  of  the  United  States  as  distinguished  from  citizenship  in 

the  several  States,  518,  521. 
power  to  naturalize  is  exclusively  vested  in  Congress,  529. 
can  a  State  confer  the  right  of  citizenship  or  the  suffrage  on  aliens, 

521,  529. 
Dred  Scott  case,  516,  1146. 
negroes  citizens  by  virtue  of  the  Fourteenth  Amendment,  but  not 

under  the  Constitution  as  originally  framed,  516. 
naturalization  limited  to  white  men,  516. 
Fourteenth  Amendment  as  bearing  on  citizenship,  517. 
the  citizens  of  each  State  entitled  to  all  the  privileges  and  immunities 

of  citizens  in  the  several  States,  512,  516. 

CIVIL  RIGHTS, 

admission  on  equal  terms  to  hotels,  theatres,  and  railway  trains  not 
guaranteed  by  the  Constitution  except  against  the  States,  and  then 
only  when  the  exclusion  is  on  account  of  race  or  color,  541. 
Civil  Rights  Bill  an  unconstitutional  exercise  of  the  police  power  by 
534. 


CIVIL  SERVICE  EXAMINATIONS, 

as  a  means  of  curtailing  the  President's  patronage,  175. 
CIVIL   SERVICE  REFORM, 
a  practical  question,  234. 
established  in  England,  234,  236. 


1344  INDEX. 

CIVIL   SERVICE   REFORM  — continued. 
argument  in  favor  of,  236. 

servitude  of  the  office-holders  individually  under  the  present  system ; 
their  undue  influence  as  a  class,  229,  267. 

CLASS  LEGISLATION, 

laws  inflicting  on  a  class  disfranchisement  or  professional  disqualifi- 
cation invalid,  549-555. 

CLAY,  HENRY, 

relation  to  protective  tariff,  134. 

COINING  MONEY. 

power  of  Congress  to  coin  money  and  regulate  the  value  thereof  and 

of  foreign  coin,  16,  114,  1232,  1243,  1247. 
the  power  absolute,  1233,  1234. 
any  metal  may  be  coined  as  money  and  made  a  legal  tender,  1233, 

1234. 
the  proportion  of  aUoy  may  be  increased  or  that  of  the  precious  metal 

diminished  without  changing  the  nominal  value  of  the  coin,  1234, 

1235,  1237. 
whether  it  includes  paper  money,  1232,  1243,  1247. 
bank-notes  money  in  the  common  acceptation  of  the  term,  1241. 
a  dollar,  an  arithmetical  term  or  unit,  and  a  promise  to  pay  SIO  — 

silver  —  may  be  fulfilled  by  the  tender  of  an  eagle  or  one  hundred 

dimes,  1235. 

COKE, 

on  the  relation  of  the  crown  to  the  judiciary,  186,  163-165. 

COLLATERAL  INHERITANCE  TAX, 

operating  retrospectively,  valid,  807. 

COLONIES,  AMERICAN, 

political  relations  of,  before  the  War  for  Independence,  11. 

a  union  necessary,  13. 

internal  and  foreign  commerce,  427,  463. 

COLOR, 

not  to  be  a  disqualification  for  suffrage,  511,  523. 

COLORED  PERSONS, 

effects  of  gift  of  political  equality  to,  748. 
COMMERCE, 

power  to  regulate  taxation  as  distinguished  from  the  regulation  of 
commerce,  459. 

regulated  before  the  Declaration  of  Independence  by  Parliament,  459 

under  the  Articles  of  Confederation  Congress  had  no  powei*  to  regu- 
late commerce,  16. 

regulation  by  treaty,  439. 

the  phrase  "  among  the  States  *'  defined,  433. 

may  be  exercised  within  the  limits  of  a  State,  and  wherever  the 
waters  of  a  lake,  strait,  or  river  afford  a  way  for  foreign  or  inter- 
state commerce,  430,  434,  437,  1257. 


INDEX. 


1345 


COMMERCE  —  continued. 

the  power  of  Congress  is  now  plenary,  and  includes  intercourse  and 
traffic  with  foreign  nations  and  among  the  States  in  whatever 
form,  108,  428,  433,  435,  474,  476,  482,  532. 

navigation,  108,  428,  434. 

shipping,  109,  434,  1258. 

the  currency,  1249,  1262. 

sale  or  mortgage  of  vessels,  109,  1258. 

telegraphy,  434,  482. 

the  mail,  485. 

improvement  of  harbors  and  channels,  457,  486. 

bridges  over  navigable  rivers,  496. 

importation,  434. 

immigi-ation,  473. 

interstate  transportation  of  goods  and  passengers,  324,418,434,453,482. 

policies  of  insurance  not  commercial  contracts,  479. 

trade-marks,  438,  442. 

power  of  Congress  exclusive  as  to  transportation,  but  does  not  extend 
to  the  commodities  themselves,  438,  474. 

exclusive  of  the  States,  432. 

except  where  their  intervention  will  not  disturb  the  uniformity  which 
is  the  object  of  the  power,  447,  450,  452. 

does  not  include  the  purely  internal  commerce  of  a  State,  439,  441. 

an  act  of  Congress  regulating  trade-marks  generally  is  invalid,  439. 

Congress  cannot  regulate  the  form  or  effect  of  sales  or  contracts  made 
and  to  be  performed  in  a  State,  439,  442. 

power  claimed  and  exercised  by  the  federal  courts  in  this  regard,  443, 
1117. 

conflict  of  State  and  federal  jurisdictions  from  this  cause,  442,  1108, 
1117. 

if  the  police,  taxing,  or  other  powers  of  a  State  conflict  with  the 
power  to  regulate  commerce,  or  other  Constitutional  grant  to  Con- 
gress, the  State  must  yield,  274. 

in  determining  the  validity  of  such  measures  regard  will  be  had  to 
their  nature  and  effect,  and  they  may  be  set  aside  judicially  if  oper- 
ating as  regulation  of  commerce,  274,  462,  467. 

Congress  may,  and  the  States  cannot,  regulate  immigration,  470,472. 

State  tax  on  imports  or  exports  invalid,  251,  467. 

so  of  tax  on  passengers,  273,  464. 

when  the  voyage  or  transit  is  interstate  the  State  legislatures  cannot 
regulate  the  rates  of  freight  or  passage,  nor  can  they  prohibit  dis- 
crimination on  account  of  race  or  color,  474,  477,  478. 

a  State  cannot  adopt  any  measure  which  directly  or  indirectly  oper- 
ates as  a  tax  or  imposes  a  restraint  on  foreign  or  interstate  inter- 
course or  commerce,  273,  324,  467. 

State  may  exclude  foreign  corporations,  481. 

or  exact  a  license  fee  as  price  of  admission,  481. 

but  cannot  preclude  them  from  transacting  interstate  or  foreign  com- 
merce, 458,  481. 


1346  INDEX. 

COMMERCE  —  continued. 

regulation  of  traasportation  within  State  limits  by  the  State,  valid, 
457,  770. 

beyond  the  State  invalid,  457,  771. 

interstate  railroad  rates,  478,  771. 

long  and  short  haul,  478. 

States  may  not  so  regulate  internal,  as  to  affect  interstate  transporta- 
tion of  freight  or  passengers,  478,  771. 

where  Congress  has  not  acted  a  State  may  regulate  pilotage,  447. 

improve  harbors  and  rivers,  456. 

establish  and  regulate  ferries,  454. 

bridge  navigable  streams  wholly  within  the  State,  453. 

establish  a  quarantine  and  make  other  needful  police  regulations, 
although  they  incidentally  affect  commerce,  433,  451,  454,  457, 
461,  770. 

no  power  in  the  State  to  levy  a  license  tax  on  non-residents  as  such,  467. 

a  State  may  tax  wares  of  a  sister  State  uniformly  with  her  own 
wares,  469. 

State  may  not  legislate  where  the  power  is  exclusively  in  Congress,  468. 

Congressional  inaction  no  authority  for  State  legislation  where  uni- 
formity is  requisite,  325,  478. 

COMMERCIAL  LAW.     See  also  Federal  Courts. 

legislative  function  of  the  courts  as  to,  448. 

federal  and  State  courts  not  bound  by  each  other's  decision  on  ques- 
tions of  commercial  law,  447. 

COMPENSATION.    See  Eminent  Domain;  Taxation. 

CONFEDERATION, 

had  the  attributes  of  sovereignty  without  the  power  to  carry  them 

into  effect,  15. 
by  its  terms  perpetual,  15,  16. 
elements  of  weakness,  16. 

CONFISCATION, 

of  enemies'  property,  947. 

inhabitants  of  territory  occupied  by  insurgents  may  be  treated  as 
enemies,  though  not  participating  in  the  rebellion,  1130. 

CONGRESS, 

iinder  the  Articles  of  Confederation.     See  Confederation. 

unconstitutional  acts  of,  void,  25. 

power  as  to  peace  and  war,  171. 

conflict  with  the  executive,  173. 

the  question  of  making  the  Cabinet  responsible  to,  considered,  175. 

power  of  impeachment,  210. 

power  to  tax,  241. 

internal  improvements,  246-248. 

power  of,  essentially  limited,  504. 

Civil  Rights  Bill,  534. 

private  wrongs  not  punishable  by,  538. 


INDEX. 


1347 


CONGRESS  —  continued. 

cannot  interfere  with  private  rights  except  for  governmental  pur- 
poses, 754. 
judicial  powers  of,  850-857. 
power  of,  to  compel  attendance  of  witnesses,  852. 
privilege  of  debate  in,  854. 
power  of,  to  establish  martial  law,  960. 

acts  of  March  3,  1863,  and  April  20,  1871,  as  establishing  a  dictator- 
ship, 981. 
CONSEQUENTIAL  DAMAGES.     See  also  Eminent  Domain. 
for  injury  to  land,  385. 

a  statute  providing  a  remedy  for,  against  pre-existent  corporations 
held  in  Pennsylvania  to  impair  the  obligation  of  the  charter  as  a 
contract,  422. 
CONSIDERATION, 

how  far  essential  to  the  validity  of  contracts  for  a  grant  of  exemption 
from  taxation,  589-596. 

CONSPIRACY, 

to  hinder  the  exercise  of  the  right  of  suffrage  not  indictable  in  federal 
courts  unless  on  account  of  race  or  color,  or  where  the  election  is 
for  the  President  or  Congress,  526,  540, 

CONSTITUTION  OF    THE  UNITED    STATES,   1320.     See  Gov- 
ernment OF  THE  United  States. 

CONSULS.    See  Federal  Courts. 

CONTEMPT, 

power  to  punish  for,  851. 
juiy  trial  not  necessary,  869. 

CONTINGENT   REMAINDERS, 

are  properly  within  the  constitutional  protection,  829. 
CONTRACTS.     See  Obligation  of  Contracts. 

charters  of  municipal  corporations  are  not,  627,  633. 

what  are,  in  the  sense  of  the  constitutional  prohibition,  506,  589, 

1233-1239. 
cannot  ordinarily  be  regulated  or  varied  by  the  United  States,  108-111. 
may  be  within  the  scope  of  the  express  or  implied  powers  of  Congress, 
108-111. 

CONVENTION  (CONSTITUTIONAL)   OF  1787 

character  of  the  men  who  composed  it,  6,  8. 

its  task  shaped  for  it  by  circumstances,  8. 

the  call  by  Congress,  21. 

organization,  21. 

the  Convention  called  by  Congress  to  revise  the  Articles  of  Confed- 
eration, but  their  labors  resulted  in  a  new  scheme  of  government 
known  as  the  Constitution  of  the  United  States,  21,  50,  71. 

they  had  no  legislative  power,  and  simply  prepared  an  instrument  for 
submission  to  the  people  of  the  States,  39,  71. 


1348  INDEX. 

C0NV15NTI0N  (CONSTITUTIONAL)   OF   17 S7  —  continued. 

sat  with  closed  doors,  under  a  pledge  of  secrecy  which  was  observed, 
and  their  debates  are  not  a  guide  to  the  interpretation  of  the  Con- 
stitution which  must  be  drawn  from  the  instrument  as  adopted  by 
the  State  Conventions,  70,  1250. 

the  choice  lay  between  federation  and  centralization,  and  resulted  in 
a  government  embodying  some  of  the  essential  features  of  either 
system,  22,  23,  26,  37,  83. 

two  plans  laid  before  the  Convention,  one  by  Patterson  giving  an 
express  power  to  coerce  the  States,  the  other  by  Randolph  substi- 
tuting a  coercion  of  laws,  operating  directly  on  the  people,  and 
enforced  if  needful  by  arms,  52,  53,  58,  (52. 

both  plans  referred  to  the  committee  of  the  whole,  and  Randolph's 
plan  adopted,  52. 

ratification  by  nine  States  sufficient  under  the  Seventh  Article  to 
establish  the  Constitution  as  between  the  States  so  ratifying  the 
same,  39, 

this  provision  revolutionary,  as  displacing  the  existing  government 
without  the  consent  of  Congress  and  of  all  the  States,  as  required 
by  the  Articles  of  Confederation,  39,  46. 

the  Constitution,  "approved  by  all  the  States  present  through  the 
votes  of  a  majority  of  their  delegates  chosen  in  each  State  by  the 
people  thereof,"  40. 

laid  by  the  Convention  before  Congi'ess,  and  by  them  transmitted  to 
the  legislatures  of  the  several  States,  to  be  submitted  to  a  convention 
of  delegates  chosen  in  each  State  by  the  people  thereof,  41,  42. 

the  requirement  for  the  adhesion  of  nine  States  satisfied  on  the  21st 
of  June,  1788,  by  the  accession  of  New  Hampshire,  followed  by 
that  of  Virginia  on  the  25th  of  the  same  month,  42,  44. 

election  of  Washington  as  president,  and  organization  of  the  new 
government,  46. 

CONVENTIONS  OF  THE   STATES, 

Connecticut,  41,  59,  60. 

New  Hampshire,  42. 

New  York,  41,  42,  43,  77,  78,  84. 

North  Carolina,  45. 

Pennsylvania,  41,  60,  74,  77,  81,  84. 

Rhode  Island,  45. 

Connecticut,  41. 

Virginia,  41,  43,  53,  60,  68,  77,  79,  92. 

the  Constitution  adopted  in  the  State  Conventions,  with  notice  that 
the  new  government  would  be  supreme  and  national,  and  that  the 
choice  once  made  would  be  irrevocable,  71,  79,  80,  81,  82. 

the  Constitution  described  by  its  opponents  in  the  Virginia  Conven- 
tion and  elsewhere  as  "  a  national  government  founded,  not  on  the 
principle  of  the  preservation,  but  of  the  abolition  and  consolidation 
of  the  State  governments,"  and  the  phrase  "  We,  the  people,"  ob- 
jected to,  as  showing  that  the  Constitution  was  "  not  a  compact,  but 


INDEX. 


1349 


CONVENTIONS   OF   THE   STATES  — continued. 

a  great  consolidated  national  government  of  the  people  of  all  the 
States,"  71,  80. 
Richard  Henry  Lee's  suggestion  that  Virginia  should  resei*ve  the 
right  of  withdrawal  contrary  to  the  general  sentiment  and  not  laid 
before  the  Convention,  83. 

CORPORATIONS, 

power  of  Congress  to  create.  98,  105,  111,  249,  1310. 

States  as  shareholders  in,  628,  701. 

legislative  control  of  corporate  property,  259,  637-645. 

States  may  tax  property  of  corporations  created  by  Congress,  259. 

stocks  and  bonds  of,  where  taxable,  319. 

taxation  of  foreign,  325-329. 

domicile  of,  328. 

corporations  chartered  by  other  States  not  citizens,  276;  462,  480,  515. 

chartey  of,  a  contract  which  may  not  be  impaired,  421,  597. 

giving  or  enlarging  a  remedy  against,  does  not  impair  the  charter, 

601. 
may  be  regulated  like  natural  persons,  601,  613. 
cannot  be  debarred  by  States  from  carrying  on  interstate  or  foreign 

commerce,  462,  516. 
constitutional  provision  that  charters  shall  be  revocable  precludes  an 

absolute  grant,  653. 
enumeration  of  particular  burdens  in  a  charter  will  not  preclude  the 

imposition  of  others,  666. 
franchise  to  be  a  corporation  not  assignable  unless  such  is  manifestly 

the  intention  of  the  charter,  668. 
right  of  eminent  domain  may  be  delegated  to,  337,  346. 

COUNTERFEITING.    See  Federal  Courts. 

COUR  DU  ROI, 

nature  and  functions,  160. 

COURT-MARTIAL.     See  Martial  Law,  War. 

COLTIT  OF  CLAIMS.     See  Federal  Courts. 

COURTS.    See  Federal  Courts;  Judiciary  (English);  Judiciary 
(French). 

CRIMES.     See  Federal  Courts. 
jurisdiction  of  court-martial,  950. 
jurisdiction  of  the  federal  courts,  1120 

CURIA  REGIS, 

nature  and  functions,  158. 

CURRENCY.     See  Coining  Money;  Paper  Money. 

Congress  empowered  to  coin  money  and  regulate  the  value  thereof, 

and  of  foreign  coin,  1232. 
power  to  issue  bills  of  credit  or  treasury  notes  implied  in  the  power 

to  borrow,  1250-1253,  1278. 


1350  INDEX. 

CURRENCY  —  continued. 

the  grant  of  an  express  power  to  coin  money  does  not  operate  as  a 
prohibition  of  the  creation  of  a  currency  in  another  form,  1264, 
1266. 

that  the  words  "  to  emit  bills  of  credit "  were  stricken  from  the  in- 
strument as  originally  reported,  not  an  argument  against  the  exist- 
ence of  the  power,  1250,  1302. 

the  convention  were  adverse  to  sanctioning,  and  not  prepared  to  pro- 
hibit paper  currency,  and  left  the  question  open,  1250,  1267. 

paper  money  issued  by  the  State  banks  displaced  coin,  and  became 
during  war  and  at  each  financial  crisis  the  only  currency  within 
the  reach  of  the  government  or  individuals,  267,  1249. 

power  of  Congress  to  regulate  the  currency  in  whatever  form  it  actu- 
ally exists,  conferred  impliedly  in  the  power  to  regulate  commerce, 
1249. 

arguments  of  Calhoun,  Dallas,  and  Webster  in  favor  of  it,  1249. 

exercised  through  a  national  bank  chartered  by  Congress,  ^67. 

repeal  of  the  charter,  and  financial  disorder  arising  from  the  over- 
issues of  the  State  banks,  followed  by  a  collapse  of  the  national 
finances  during  the  Civil  War,  267,  1240. 

Congress  regain  the  control  of  the  currency  by  issuing  United  States 
notes  or  bills  of  credit,  which  are  made  a  legal  tender,  and  sup- 
press the  State  banks  by  penal  taxation,  267,  1273. 

arguments  for  and  against  the  existence  of  such  a  power,  as  deduced 
from  the  power  to  declare  war,  the  power  to  borrow  money,  and 
the  power  to  regulate  commerce,  1250,  1252,  1253,  1255,  1256- 
1263. 

the  legal  tender  acts  declared  unconstitutional  by  the  Supreme 
Court,  1276. 

this  judgment  subsequently  overruled  by  a  majority  of  one,  1289. 

the  power  is  not  derived  from  that  to  declare  war,  and  may  be  exer- 
cised during  peace,  1308. 

debts  may  be  paid  in  whatever  money  is  a  legal  tender  when  they 
mature,  although  less  valuable  than  that  contemplated  by  the  par- 
ties, 1286. 

such  a  change  does  not  impair  the  obligation  of  the  contract,  because 
it  is  presumed  to  have  been  made  with  notice  that  the  power  exists 
and  may  be  exercised,  1235,  1238. 

making  United  States  notes  or  bills  of  credit  a  legal  tender  is  "  neces- 
sary and  proper  ' '  to  give  them  currency,  in  the  sense  in  which  the 
term  is  synonymous  with  "  directly  related"  and  "conducive  to," 
1294,  1296,  1299. 


D. 

DAM, 

condemnation  of  land  for,  339. 

for  manufacturing  purposes,  340-343. 

compensation  for  injury  caused  by  backing  of  water  by,  388,  390. 


INDEX. 


1851 


DAM  —  continued. 

rule  in  Pennsylvania,  386. 

erection  of,  in  navigable  river,  401,  412,  488,  612. 

distinction  between  dams  over  navigable  rivers  and  private  streams, 

412. 
destruction  of  fishery  by,  612. 

DAMAGES.    See  Eminent  Domain  ;  Police  Powers  ;  "  Due  Pro- 
cess OF  Law." 
for  property  taken  by  the  public,  349. 

DAMNUM  ABSQUE  INJURIA, 

State  not  liable  for,  397. 
what  consequential  injuries  are,  398-401. 

rendering  a  stream  impure  without  negligence  is,  in  Pennsylvania, 
399. 

DEBATE,   PRIVILEGE   OF, 

in  Congress,  854. 

DEBTS.    See  Municipal  Corporations;  Non-Resident  Parties. 

DEFINITIONS, 

taxation,  277,  279. 

eminent  domain,  331,  333. 

property,  357,  393,  759. 

easement,  360. 

a  treaty,  439. 

a  ferry,  458. 

ex  post  facto  laws,  547,  561,  737. 

bill  of  attainder,  551. 

contract,  577. 

public  corporations,  627. 

*'  obligation  of  a  contract,"  678. 

civil  liberty,  777. 

"  law  of  the  land,"  797. 

military  law,  930. 

military  government,  930. 

martial  law,  930. 

DELEGATION  OF  POWER, 

what  governmental  powers  may  be  irrevocably  delegated,  633. 
DE  LOLME, 

as  to  the  Court  of  Chancery  as  an  experimental  legislature,  729. 
omnipotence  of  Parliament,  167. 

DE   TOCQUEVILLE, 

views  on  the  subject  of  impeachment  in  the  United  States,  211. 
on  the  tendency  of  European  races  towards  democracy,  239. 
on  the  droit  administratif  oi  France  as  contrasted  with  the  liability  of 
public  functionaries  in  England  and  the  United  States,  141. 


1352  INDEX. 

DISCRIMINATION'S.     See  also  Railroads. 

cannot  be  made  in  taxation  against  the  products  or  citizens  of  other 

States,  273,  469. 
in  the  privileges  and  immunities  of  citizens,  275,  298,  511,  512. 

DISTRESS, 

can  right  of,  though  stipulated  for  in  the  lease,  be  abolished  retro- 
actively? 698. 
rule  in  Pennsylvania,  698. 

DOWER, 

whether  an  inchoate  right  of,  is  property  within  the  meaning  of  the 
Constitution,  826. 

DRAINS, 

assessments  for,  287,  342,  344,  871. 

taking  land  for  the  construction  of,  under  the  right  of  eminent  domain, 
341. 

DRED  SCOTT  CASE,  516,  1140,  1303. 

«'DUE  PROCESS   OF  LAW."    See  also  Eminent  Domain;  Police 
Power;  Taxation. 

source  and  meaning  of  the  phrase,  748. 

synonymous  with  the  ^^  Judicium  parium  suorum  vel  lex  terrce  "  of 
Magna  Charta,  749,  863. 

Congress  cannot  impair  vested  rights  without  making  compensation, 
754. 

nuisance  cannot  be  authorized  by  Congress  without  compensation,  756. 

what  constitutes  the  deprivation  which  the  amendments  forbid,  758,776. 

houses  may  be  torn  down  from  necessity  to  check  fire  or  pestilence,  76L 

a  statute  not  a  justification  for  an  unnecessary  deprivation,  765,  907. 

regulation  of  property  devoted  to  public  purposes  must  not  operate 
as  a  taking  without  compensation,  769. 

the  prohibition  applies  to  future  rights,  785. 

validating  a  contract  invalid  at  common  law  may  operate  as  a  depri- 
vation without,  743,  788. 

what  contracts  may  be  retroactively  confirmed,  791. 

statutes  confirming  usurious  contracts,  791. 

confirmation  of  gaming  contract  or  invalid  marriage,  794. 

of  demands  barred  by  the  statute  of  limitations,  839. 

revival  of  writ  of  error  by  statute  after  right  to  has  lapsed,  unconsti- 
tutional, 838. 

retroactive  statute  may  correct  innocent  mistakes,  795. 
may  validate  imperfect  deeds,  796. 
may  validate  sheriff's  sale,  797,  811. 

retroactive  confirmation  of  executory  contracts  invalid,  798. 

defectively  acknowledged  deeds  of  married  women  may  be  rendered 
valid  by  statute,  799. 

laws  regulating  evidence  do  not  ordinarily  operate  as  a  deprivation,  799. 

such  regulation  must  not  destroy  the  right,  800. 


INDEX. 


1353 


''DUE   PROCESS  OF  l^K^N ''  —continued. 

law  giving  an  additional  remedy  for  an  existing  right  is  not  a  depri- 
vation, 801. 

retroactive  confirmation  of  invalid  will  or  gift,  802-807. 

invalid  lien  cannot  be  confirmed  as  against  purchaser,  804. 

invalid  conveyance  to  a  bonajide  purchaser  may  be  confirmed,  806. 

an  act  done  irregularly  which  the  State  might  have  authorized  may 
be  confirmed,  807. 

collateral  inheritance  tax  operating  retrospectively,  valid,  807. 

legislature  may  ratify  municipal  act  or  contract,  807. 

where  there  is  an  inability  to  convey,  the  grant  cannot  be  confirmed 
by  the  legislature,  810. 

necessary  selling  of  land  for  partition  not  a  deprivation  without,  814. 

sale  of  land  for  support  of  persons  under  disabilities  not  unconstitu- 
tional, 816. 

power  to  direct  sale  for  such  purposes  withheld  from  legislature  in 
some  of  the  States  and  vested  in  the  judiciary,  822. 

legislature  cannot  authorize  sale  where  no  legal  necessity  exists,  820. 

conversion  at  the  instance  of  a  life  tenant,  817. 

such  conversion  unconstitutional  where  all  parties  are  sui  Juris  and 
do  not  consent,  818. 

whether  dower  and  tenancy  by  the  curtesy  are  property  within  the 
meaning  of  the  prohibition,  826. 

choses  in  action  are  property,  824,  827,  1280. 

a  man's  papers  are  property,  830. 

an  expectancy  is  not  property,  825. 

contingent  interests  and  remainders  are  property,  828. 

there  may  be  a  right  of  property  in  a  defence,  841. 

means  a  prosecution  or  suit  instituted  in  some  competent  tribunal, 
845. 

but  not  necessarily  jury  trial,  858. 

requires  notice  and  hearing,  874. 

tribunal  must  be  judicial,  849. 

and  must  proceed  judicially,  876. 

power  to  nonsuit,  876. 

acts  ordering  a  new  trial  or  rehearing  invalid,  847. 

want  of  jurisdiction  cannot  be  cured  retroactively,  848. 

proceedings  against  sureties  of  tax  collectors,  877. 

against  corporators  individually  for  corporate  debts,  879. 

against  inhabitants  for  town  debts,  880. 

against  a  master  on  a  judgment  against  servant,  882. 

remedy  w^here  property  is  taken  by  a  State  or  the  United  States 
withont,  887. 

action  may  be  maintained  against  a  public  officer  acting  under  an 
illegal  order  from  a  State  or  the  United  States,  887-903. 

such  a  suit  is  not  a  suit  against  the  Government  or  within  the  Eleventh 
Amendment,  889,  903. 


1354  INDEXo 

E. 

EASEMENTS.     See  Eminent  Domain. 

acquirement  by  the  public  under  right  of  eminent  domain,  359. 

ELECTIONS.     See  also  Suffrage. 
regulation  of,  by  Congress,  520,  526. 

fraud  in  holding  an  election  for  State  legislature  and  Congress  pun- 
ishable by  both  governments,  520,  526,  1164. 
irregular  by  corporations  may  be  confirmed  by  statute,  807. 

ELECTORAL  COLLEGE, 

practical  repeal  of  the  original  functions  of,  219. 

ELEVATED  RAILWAYS, 

rights  of  neighboring  owners  against,  372. 

ELEVENTH  AMENDMENT,  1047,  1055. 

ELLSWORTH, 

in  the  Constitutional  Convention,  35,  48. 
in  the  Connecticut  Convention,  41,  59. 

EMANCIPATION  PROCLAMATION, 

as  a  measure  of  military  government,  945. 

EMBARGO, 

implied  power  of  Congress  to  lay  and  maintain,  108,  113,  433,  429, 

1283. 

EMINENT  DOMAIN, 
definition  of,  331,  333. 
source  and  nature,  332. 
distinguished  from  taxation,  332. 
does  not  ordinarily  extend  to  fungible  goods,  333. 
should  be  exercised  in  a  reasonable  manner,  335. 
right  of,  in  the  general  government,  335. 
must  be  for  public  purposes,  336. 
may  be  delegated,  337,  346. 
limitations  on,  338. 

exercised  for  dams,  irrigation,  navigation,  parks,  railways,  etc.,  839. 
for  private  ways,  344. 
incidental  private  benefit  from,  345. 

whether  the  purpose  is  public,  primarily  for  the  legislature,  345. 
ultimately  for  the  judiciary,  345. 
question  of  expediency  for  the  legislature  alone,  345. 
land  cannot  be  taken  for  church  or  theatre,  346. 
cannot  be  exercised  by  the  general  government  except  for  a  purpose 

within  its  enumerated  powers,  346. 
right  of  owner  to  compensation,  349. 
measure  of  damages,  349. 
opening  of  streets,  302. 
"benefits,"  349. 


INDEX. 


1355 


EMINENT  DOMAIN  —  continued. 

when  taking  partial  compensation  depends  on  market  value  before 

and  afterwards,  350. 
property  which  may  be  subject  to  the  right,  353. 
land  easements,  chattels,  money,  franchises,  353. 
grant  for  one  public  purpose  may  be  superseded  by  another,  354,  623. 
toll-bridges  may  be  made  free,  354. 
railways  laid  on  highways,  362,  3G9,  412. 
who  are  entitled  to  compensation,  355. 
word  "  owner  "  has  no  technical  meaning,  355. 
future  or  contingent  interests,  356. 
judgment  creditors  of  owner,  356. 
lessee,  358. 

purchaser  from  owner,  358. 
easements,  359-374. 
gi'ound  rents,  360. 

obstruction  of  watercourse,  360,  388. 
appropriation  of  highways  to  different  use,  360. 
compensation  of  abutting  owners  for  construction  of  steam,  elevated, 

or  horse  railway  on  street,  366,  372 
distinction  between  the  public  taking  the  fee  or  merely  acquiring  an 

easement,  366,  394. 
railway  company  liable  for  injurious  use  of  elevated  railway  or  other 

structure  on  their  own  land,  756.     Rule  in  Pennsylvania,  378,  422. 
compensation  for  property  diverted  from  one  public  use  to  another, 

366,  372. 
elevated  railways,  372. 
vacation  of  highways,  376,  382. 

rule  in  Pennsylvania  as  to  State  control  of  highways,  378,  382. 
what  constitutes  a  taking  under  the  right  of,  383. 
consequential  damages,  385. 

rule  as  to  consequential  damages  in  Pennsylvania,  385,  759. 
deprivation  of  use  may  be  a  taking,  388,  758. 
flooding  land  a  taking,  389. 
cutting  off  access  to  land,  394,  419. 
change  of  grade  of  streets..  395. 
removing  lateral  support,  412,  414. 
state  not  liable  for  damnum  absque  injuria,  397. 
right  of,  does  not  excuse  negligence,  402,  413. 
legislature  cannot  sanction  neglect  or  injurious  use,  402,  756. 
liability  of  railway  company  for  escape  of  water,  sparks,  or  smoke 

without  negligence,  409. 
surface  water,  410. 
sewers  and  culverts,  410. 
the  liability  of  an  owner  for  injuries  resulting  from  his  use  of  his  own 

land  the  measure  of  compensation  for  the  injurious  use  of  land 

acquired  under  the  right  of  eminent  domain,  397-415. 
summary  of  cases  in  which  compensation  may  be  required,  415-422. 

VOL.  II.  —  45 


1356  INDEX. 

EMINENT   DOMAIN  — confmuerf. 

measure  of  damages  where  the  whole  is  taken,  415. 

where  a  part  is  taken,  415. 

where  redress  is  sought  for  injurious  consequences  of  the  taking,  or 
subsequent  public  use,  on  adjacent  land  not  taken,  416. 

risk  of  fire  from  sparks  is  not  to  be  considered  except  where  the 
taking  is  partial,  and  the  market  value  of  the  residue  is  thereby- 
injured,  351. 

to  maintain  an  action  for  the  obstruction  of  a  public  right  plaintiff 
must  show  some  injury  peculiar  to  himself,  419. 

grant  of  right  of,  irrevocable,  609. 

taking  of  property  already  appropriated  under  right  of,  623,  830,  834. 

ENGLISH  CONSTITUTION, 

relation  to  the  origin  of  the  United  States  Constitution,  3,  9,  146. 

undergoing  continual  change,  146,  181. 

present  tendencies,  6,  178. 

omnipotence  of  Parliament,  146,  213. 

ancient  powers  of  king,  lords,  and  commons,  146. 

development  of  representative  government,  147. 

relation  of  legislature  to  judiciary.     See  Judiciary  (English). 

relation  of  the  Crown  to  the  judiciary.     See  Judiciauy  (English). 

privy  council,  162. 

Parliament  developed  from  the  Great  Council  or  Commune  Concilium 
of  the  Norman  and  Angevin  kings,  and  composed,  like  the  Cour 
du  Iloi,  or  Parliament  of  Paris,  of  the  tenants  in  capite  of  the 
crown,  and  such  persons  as  the  king  saw  fit  to  summon  as  jurists 
or  advisers,  157,  160. 

regulated  by  Magna  Charta,  149. 

the  Curia  Regis^  a  branch  of  the  Great  Council,  sitting  under  the 
King  for  the  administration  of  the  finances  and  of  justice,  158. 

the  Justices  were  subsequently  distributed  among  the  King's  Bench, 
the  Common  Pleas,  and  the  Exchequer,  though  still  retaining  the 
privilege  of  sitting  advisorily  when  required  by  the  Peers,  158. 

the  converse  took  place  in  France,  where  the  Parliament  became  a 
judicial  body,  though  claiming  political  functions,  and  the  attend- 
ance of  the  Peers  merely  occasional,  160. 

the  failure  of  France  to  achieve  freedom,  not  from  any  inferiority  of 
the  Franks,  but  because  the  bulk  of  the  population  were  Gallo- 
Romans,  inured  to  servitude,  155. 

justice  originally  administered  by  the  king  or  by  judges  sitting  as  his 
delegates  and  removable  at  pleasure,  159. 

gradual  advance  of  the  English  judiciary  to  an  independence  which 
was  finally  attained  through  the  Revolution  of  1688, 163,  166. 

Privy  Council,  162. 

the  laws  originally  promulgated  by  the  king  with  the  advice  and 
consent  of  the  barons,  148,  186. 

transmission  of  legislative  power  to  the  Lords  and  Commons,  148. 


INDEX. 


1857 


ENGLISH  CONSTITUTION  — con^m«erf. 

the  Great  Council  composed  of  persons  sitting  in  their  own  right,  and 
not  as  representatives,  149. 

representative  government  on  the  Continent  of  Europe,  and  in  Eng- 
land, 152-156. 

the  representatives  of  the  towns  convened  in  France  in  1302,  and 
they  sat  in  the  Cortes  of  Aragon  and  Castile  at  a  much  earlier 
»     period,  152. 

election  of  members  to  represent  the  shires  and  boroughs  dates  from 
the  reign  of  Heniy  III.  and  Edward  I.,  146,  151. 

English  Government  limited  in  its  several  parts,  but  absolute  as  a 
whole,  or  subject  only  to  principles  or  precedents,  213. 

originally  a  limited  monarchy,  169. 

gradual  transformation  into  a  commonwealth,  169,  181,  194. 

decline  of  kingly  power  and  ascendency  of  Parliament,  181,  187. 

waning  influence  of  the  House  of  Lords  and  predominance  of  House 
of  Commons,  167,  187,  190. 

Parliamentary  government  through  a  ministry  designated  by  the 
House  of  Commons  contrasted  with  the  independent  exercise  of  ex- 
ecutive power  by  the  President  of  the  United  States,  170,  218,  221. 

royal  prerogative  wielded  by  the  Commons  through  the  Cabinet,  188, 
190. 

dissolution  as  a  check  on  the  House  of  Commons,  191,  192. 

temporary  revival  of  kingly  power  under  George  III.,  183,  185. 

Parliamentary  government  contrasted  with  the  government  of  the 
United  States  in  giving  immediate  effect  to  the  national  will,  176. 

adopted  in  France  but  unsuited  to  a  merely  popular  government,  178. 

power  of  the  crown  less  regal  than  that  of  an  American  President, 
170,  174. 

royal  assent  given  by  anticipation  to  every  bill  that  is  passed  by  the 
House  of  Commons,  and  the  veto  practically  extinct  in  England, 
186,  188. 

the  entire  power  of  the  realm  centred  in  House  of  Commons  or  exer- 
cised by  a  ministry  which  it  controls,  190,  191. 

the  Judges  might  be  dismissed  by  Parliament  and  owe  their  inde- 
pendence to  public  opinion,  190,  191. 

drift  of  the  English  government  to  oligarchy  in  the  seventeenth  cen- 
tury, 196,  197 

brilliancy  and  demoralization  of  the  House  of  Commons,  197,  199. 

corruption  regarded  as  a  necessary  means  of  reconciling  monarchy 
and  freedom,  198,  201. 

abuse  of  patronage  for  party  and  political  ends,  198. 

efforts  of  Chatham  and  Burke  for  reform,  202,  203. 

reformation  of  the  House  of  Commons  by  popular  opinion  and  purity 
of  that  body  in  the  first  half  of  this  century,  205. 

money  profusely  expended  to  influence  constituencies,  206. 

abuse  of  patronage  rectified  by  Civil  Service  Reform,  and  stringent 
laws  passed  for  the  suppression  of  bribery  at  elections,  206, 
235,  236. 


1358  INDEX. 

ENGLISH   CONSTITUTION  -  continued. 

the  English  government  placed  on  a  popular  basis  by  the  reform 
bills  of  1832,  1867,  and  1887,  206. 

England  able  to  dispense  with  a  written  constitution  owing  to  the 
conservatism  of  Parliament  as  representing  the  wealthy  and  cul- 
tured classes,  178,  213,  215. 

confidence  reposed  in  the  House  of  Commons  contrasted  with  the 
numerous  restraints  on  legislation  in  the  United  States,  and  j;he 
apprehension  that  it  will  be  abused,  213,  216,  228,  229. 

■whether  absolute  power  can  safely  be  entrusted  to  the  House  of 
Commons  as  now  constituted,  a  problem  for  the  future,  178,  215. 

ENGLISH  MINISTRY, 

position  and  power  of,  170. 

responsibility  to  Parliament,  178. 

royal  prerogatives  wielded  by  the  Commons  through  the  cabinet, 

187. 
dismissal  of,  192. 

ENUMERATED  POWERS.    See  Government  of  the  United  States. 
crimes  not  punishable  by  Congress  unless  within  scope  of,  1121. 

ERROR      See  Writ  of  Error. 

EVIDENCE, 

laws  changing  the  rules  of  to  the  detriment  of  the  accused,  ex  post 
facto.,  565. 

not  admissible  to  prove  that  a  legislative  grant  was  procured  by  bri- 
bery or  fraud,  660. 

laws  affecting,  as  impairing  the  obligation  of  contracts,  713. 

search-warrants  to  obtain,  not  constitutional,  831-836. 

accused  party  not  compelled  to  give,  against  himself,  833-836. 

laws  regulating,  do  not  ordinarily  operate  as  a  deprivation  of  prop- 
erty within  the  constitutional  prohibition,  799. 

EXECUTION, 

indefinite  stay  of,  unconstitutional,  690,  692,  708. 
reasonable  stay  of,  valid,  694. 

stipulation  that  there  shall  be  no  stay  of,  how  far  valid,  700. 
law  withdrawing  property  from,  impairs  the  obligation  of  contracts, 
701. 

EXEMPTION  FROM  EXECUTION. 
waiver  of,  698. 
how  far  valid  as  regards  pre-existing  contracts  against  subsequent 

legislation,  700. 
rule  in  Pennsylvania,  698. 

EXEMPTION  FROM  TAXATION.     See  also  Taxation. 
may  operate  as  a  contract,  587. 

whether  a  consideration  for  such  exemption  js  necessary,  589-595. 
must  be  for  some  public  object,  593,  604. 


INDEX. 


1359 


EXEMPTION  FROM  TAXATION  —  con^mwerf. 

a  personal  privilege,  ordinarily  not  assignable,  605,  668. 

statutes  granting,  strictly  construed  in  favor  of  the  public,  664,  668. 

may  run  with  the  land  when  so  designed,  670. 

EX  POST  FACTO  LAWS, 

definition  of,  547,  561,  737. 

inconsistent  with  Magna  Charta,  544. 

power  of  Parliament  to  enact,  544. 

enacted  by  the  States  under  the  confederation,  454. 

forbidden  by  the  Constitution,  547. 

comprehend  only  penal  legislation,  547. 

if  the  law  is  penal  in  effect  it  need  not  be  so  in  terms,  550,  556,  560. 

retroactive  legislation  not  necessarily  ex  post  facto,  548. 

distinguished  from  bills  of  attainder,  548. 

laws  inflicting  on  a  class  disfranchisement  or  professional  disqualifi- 
cation invalid,  549-555. 

law  requiring  oath  as  proof  of  innocence  invalid,  558. 

deprivation  of  suffrage  or  occupation  may  be  penal,  557. 

tendency  to  give  the  term  ex  post  facto  a  technical  meaning,  559. 

penalty  may  be  diminished,  but  not  changed  or  aggravated,  561. 

what  constitutes  an  aggravation,  564-566. 

laws  changing  the  rules  of  evidence,  565. 

laws  changing  procedure,  565. 

period  of  limitation  may  be  extended,  but  the  accused  cannot  be 
denied  its  protection  after  it  has  expired,  571. 

prohibition  of  ex  post  facto  laws  binding  on  the  States  and  general 
government,  575. 

EXPECTANCY, 

a  mere,  not  property,  825. 


F. 

FEDERAL  COURTS, 

province  in  the  interpretation  of  the  Constitution,  1,  2, 119. 

power  of  the  English  judiciary  to  set  aside  the  illegal  acts  of  the 

several  departments  of  the  government  exercised  by  the  American 

judges  with  regard  to  the  government  as  a  whole,  and  its  various 

branches.  135-137. 
the  Supreme  Court  the  final  arbiter  of  constitutional  questions,  27, 

54,  119,  135. 
effect  of  the  system  on  the  American  people,  122. 
distinction  between  legal  and  political  questions,  124,  249. 
restraint  of  State  or  federal  governmental  departments  by  injunction, 

129,  1064,  1068,  1075,  1220-1227. 
contrasted  with  the  French  judicial  system,  140. 
contrasted  with  the  English  judicial  system,  212. 
not  bound  by  the  decisions  of  State  courts  on  questions  of  commercial 

law,  447,  1112. 


1360  INDEX. 

FEDERAL   COURTS  —  continued. 

conflict  of  jurisdiction  from  this  cause,  442,  1109,  1119. 

when  the  parties  are  from  diifereut  States,  or  any  part  of  the  case  is 
federal,  may  be  exercised  over  matters  which  are  beyond  the  con- 
trol of  Congress,  and  when  the  action  is  ex  contractu  regardless  of 
the  law  as  declared  by  the  State  tribunals,  442,  998,  1109,  1119. 

jurisdiction  from  the  nature  of  the  cause,  985. 

what  constitutes  a  case  under  the  Constitution  and  laws  of  the  United 
States,  994-997. 

if  any  point  is  within  the  jurisdiction  the  entire  case  may  be  within 
it  although  the  point  is  not  mooted  on  either  side,  993,  998. 

jurisdiction  co-extensive  with  federal  legislation,  988. 

jurisdiction  under  the  patent  laws,  1086. 

appellate  power  of  the  Supreme  Court  over  judgments  of  State  courts, 
720,  990. 

judiciary  act  of  1789,  989. 

may  be  exercised  although  case  is  within  the  grant  of  original  juris- 
diction, 1169. 

cannot  be  exercised  over  judgments  of  State  courts  unless  the  judg- 
ment is  against  a  right  or  title  claimed  under  the  Constitution  or 
laws  of  the  United  States,  990,  991. 

over  the  subordinate  federal  courts  in  criminal  cases,  993. 

suits  on  official  bonds  of  federal  officers,  997. 

suits  against  corporations  chartered  by  Congress,  998. 

pretence  of  right  under  the  Constitution  or  federal  laws  will  not  give 
jurisdiction,  999. 

judgment  rendered  under  unconstitutional  statute  erroneous  but  not 
void,  1003,  1021. 

in  Admiralty.     See  Admiralty  Jurisdiction. 

jurisdiction  derived  from  the  character  of  the  parties,  1023. 

suits  by  and  against  the  United  States,  1023. 

the  Court  of  Claims,  1024. 

suits  between  States,  1024. 

suits  against  ambassadors  and  consuls,  1025. 

controversies  between  citizens  of  difEerent  States,  1026. 

all  the  parties  on  one  side  must  be  of  a  different  State  from  each 
of  the  parties  on  the  other,  1027. 

corporations,  citizens  of  the  State  or  county  by  which  they  are  char- 
tered, 1030. 

ancillary  proceedings  between  citizens  of  the  same  or  of  different 
States  follow  as  regards  jurisdiction  the  principal  cases,  1033. 

recovery  may  be  had  against  an  officer  or  agent  for  wrongful  acts 
done  at  the  command  of  a  State  although  the  suit  is  specifically  for 
goods  or  money  taken  or  held  for  the  State,  1057-1060,  1076. 

when  suit  brought  by  State  involves  a  federal  question,  it  maybe 
removed  to  federal  courts  on  motion  or  by  writ  of  error,  1045, 
1062. 

a  writ  of  error  to  a  State  court  is  not  a  suit  against  the  State  although 
she  is  cited,  1042-1051. 


INDEX. 


1361 


FEDERAL   COTJRTS— continued. 

residence  does  not  determine  citizenship,  1034. 

jurisdiction  must  appear  affirmatively  of  record,  1035. 

judgment  manifestly  without  jurisdiction  void,  1037. 

erroneous  exercise  of  jurisdiction  may  be  corrected  on  appeal  or  writ 
of  error,  but  does  not  render  the  judgment  void,  1036-1038. 

the  circuit  courts  of  the  United  States  are  limited,  but  not  inferior, 
and  their  judgments  cannot  be  set  aside  collaterally  unless  the 
want  of  jurisdiction  appears  of  record,  1036-1038. 

liability  for  acts  done  on  behalf  of  a  State,  1058. 

collateral  interest  of  a  State  no  defence,  1059. 

mandamus  to  compel  performance  of  ministerial  duty,  1063. 

injunctions  follow  the  same  rule,  1064,  1067. 

what  acts  are  ministerial  within  the  rule,  1066,  1070,  1071. 

exercise  of  discretionary  power  cannot  be  compelled,  1064. 

specific  performance  by  a  State  cannot  be  obtained  by  suit  against  its 
officers,  1065. 

mandamus  to  compel  taxation,  1066. 

mandamus  to  compel  the  selection  of  jurors,  1069. 

bill  in  equity  cannot  be  filed  against  the  officers  of  a  State  if  the  State 
is  directly  interested,  1072. 

otherwise  where  the  interest  is  derived  from  unconstitutional  com- 
mand, 1075. 

all  cases  arising  under  the  Constitution  and  laws  of  the  United  States 
or  between  citizens  of  different  States  may  be  brought  in  or  re- 
moved to  the  federal  courts,  1081,  1084,  1088. 

Force  Bill  of  1833,  1081. 

requisites  of  petition  for  removal,  and  when  they  must  exist,  1088, 
1099. 

for  local  prejudice,  1096. 

when  it  must  be  filed,  1097. 

petition  conclusive  of  the  facts  but  not  as  to  the  law,  1090. 

relation  of  State  and  federal  courts  on  filing  of  petition,  1091. 

removal  under  the  act  of  1887,  1094. 

removal  of  separable  controversy,  1095. 

States  exempt  under  the  Eleventh  Amendment  from  suits  by  citizens 
in  the  federal  court  by  virtue  of  their  sovereignty,  510,  888,  1041, 
1055,  1078. 

waiver  of  the  exemption  by  the  State,  1055,  1066. 

a  mandamus  may  be  issued  by  a  federal  court  to  compel  the  perform- 
ance of  a  plain  ministerial  duty  enjoined  by  the  State,  1063,  1065. 

not  when  the  act  is  discretionary  or  forbidden  by  the  State,  1069, 
1073. 

no  proceeding  can  be  maintained  in  federal  court  to  charge  State  with 
debt  or  compel  the  payment  or  surrender  of  money  in  the  treasury, 
1057,  1062. 

a  judge  or  other  officer  of  a  State  may  be  indicted  for  misfeasance 
in  the  discharge  of  his  official  duty  as  defined  by  an  act  of  Con- 
gress, 1070,  1071. 


1362  INDEX. 

FEDERAL   COURTS  —  continued. 

right  to  jurisdiction  originally,  on  appeal,  and  to  acquire  it  by  removal 

not  always  governed  by  the  same  rules,  1102. 
State  legislation  cannot  affect  right  of  removal,  1101. 
authority  of  federal  decisions  in  the  State  courts,  1107. 
the  United  States  have  no  general  police  or  criminal  jurisdiction, 

533,  1120. 
treason,  1122. 
counterfeiting,  1124,  1133. 
offences  against  international  law,  1133. 
violation  of  neutrality,  1132. 
piracy,  1135. 
criminal  jurisdiction  in  the  territories,  District  of  Columbia,  and  in 

places  ceded  by  the  States,  1141. 
acquisition  of  land  by  the  United  States  from  a  State  does  not  give 

jurisdiction  without  the  State's  assent,  1142. 
acts  injurious  to  a  State  and  the  United  States  are  punishable  by 

both,  1150. 
removal  of  indictments,  1154. 
appellate  authority  of  the  Supreme  Court  in  criminal  cases,  1162. 

FEE.     See  Eminent  Domain. 

FERRIES, 

like  bridges,  under  the  police  power  of  States,  454,  499. 

interstate  ferry  not  taxable  by  State,  271,  458. 

authority  to  establish,  in  the  States,  458. 

legislative  grant  of,  to  municipal  corporation,  revocable,  633. 

FINDLAY, 

in  the  Pennsylvania  Convention,  74,  82,  93. 

FIFTEENTH  AMENDMENT, 

provisions  of,  511,  523. 

FIFTH  AMENDMENT, 

does  not  operate  as  a  restraint  on  the  States,  746. 
See  Due  Process  of  Law. 

FISHERY, 

destruction  of,  by  dam,  612. 

FLOODING  OF  LAND, 

may  be  a  taking  under  the  right  of  eminent  domain,  388,  390. 
by  a  boom  across  a  river  actionable,  411. 

FOOD.     See  Health;  Police  Power. 

FOREIGN   COMMERCE.     See  Commerce. 

FOREIGN  CORPORATIONS.     See  Corporations. 

FOURTEENTH  AMENDMENT.     See  Due  Process  of  Law. 
as  a  restraint  on  State  legislation,  216. 
causes  of  its  adoption,  509,  747. 
as  bearing  on  citizenship,  517. 


f 


INDEX. 


1868 


FOURTEENTH  AMENDMENT  —  con^ViMerf. 

importance  of,  747,  777. 

has  a  wider  scope  thau  the  prohibition  of  laws  impairing  the  obliga- 
tion of  contracts,  754. 

FOX,   HENRY, 

Lord  Holland,  Parliamentary  career  and  in  office,  199. 

FRANCE, 

instability  of  government  in,  4. 

absence  of  continuous  constitutional  development,  4. 

relations  of  judiciary  to  executive,  see  Judiciary  (French). 

representative  government  in,  152. 

French  people  are  collectively  rather  than  individually  free,  892. 

evils  of  the  droit  administratif  in,  892. 

martial  law  in,  956. 

FRANCHISE, 

grant  of,  a  contract,  586. 

not  exclusive  unless  so  declared  in  terms,  661. 

may  be  regulated  or  annulled  when  prejudicial  to  health  or  morals, 

1101,  613,  620,  767,  1285. 
strict  construction  of,  661. 

granted  to  municipal  corporations  may  be  resumed,  633. 
repeal  of,  where  right  of  revocation  is  reserved,  653. 
may  be  appropriated  under  right  of  eminent  domain,  354. 
to  be  a  corporation  not  assignable  unless  the  charter  so  provides, 

688. 
Congress  cannot  repeal  without  cause,  754. 

FRANKLIN,   BENJAMIN, 

versatility,  7. 

in  the  Constitutional  Convention,  34,  39,  46. 

FRAUD, 

statutory  grant  cannot  be  set  aside  because  it  was  procured  by,  736. 

FRENCH  JUDICIARY.    See  Judiciary  (French). 

FUGITIVES, 

implied  power  of  Congress  to  regulate  return  of,  108. 


GAMING  CONTRACT, 

legislative  confirmation  of,  794. 

GAS  WORKS, 

right  to  supply  town  with,  by  pipes  laid  in  the  public  streets  may  be 

given  exclusively,  782. 
pledge  of,  by  municipal  corporation  to  secure  a  loan  for,  645. 

GEORGE,   HENRY, 

theories  as  to  ownership  of  land  cannot  be  carried  into  effect  con- 
sistently with  the  Constitution,  760. 


1364  •  INDEX. 

GEORGE  III., 

personal  government  by,  184. 

GERRY, 

in  the  Constitutional  Convention,  39. 

on  the  significance  of  the  Constitution,  31. 

on  State  sovereignty,  53. 

GOVERNMENT  OF  THE  UNITED   STATES.     See  Enumerated 
Powers. 

object  of,  as  declared  in  the  Preamble,  101. 

established  by  the  people  of  the  several  States,  acting  not  only  for 
the  States,  but  in  their  soveieign  capacity  as  the  people  of  the 
United  States ;  the  ratification  unconditional,  and  would  not  have 
been  accepted  under  any  other  terms,  71-79,  81-83,  90-92. 

it  acts  directly  on  the  people,  and  may  by  coercing  them  compel 
obedience,  notwithstanding  any  law  passed  or  measure  adopted  by 
a  State,  24,  36,  57,  60,  62,  64. 

powers  of  the  government  of  the  United  States  enumerated,  not  de- 
fined, 94-96,  427,  1291. 

should  be  construed  liberally  with  a  view  to  the  attainment  of  the 
objects,  100,  107,  1265,  1292. 

nothing  given  which  they  do  not  expressly  or  impliedly  contain,  94, 
1276. 

all  that  they  contain  given  absolutely  where  there  is  no  express 
restriction,  96,  1269. 

an  actual  or  potential  restraint  on  the  States,  95-98,  432,  467. 

may  be  exercised  through  any  necessary  and  proper  means,  102, 1292. 

though  the  same  means  might  be  appropriate  to  a  power  which  is 
withheld,  455,  1266. 

what  constitutes  the  necessity  contemplated  by  the  Constitution,  104, 
1276,  1297. 

can  an  unenumerated  substantive  power  be  used  as  a  means  of  exer- 
cising an  enumerated  power,  112,  114,  116,  1276. 

the  power  to  define  and  punish  crime  an  implied  and  necessary 
means  of  executing  the  express  powers,  115,  118,  535,  1147,  1148. 

enumeration  is  not  necessarily  exclusive,  101,  1265. 

may  be  when  so  designed  as  in  the  power  to  regulate  commerce,  455. 

power  to  levy  and  collect  taxes,  duties,  imposts,  and  excises,  241. 

to  punish  crime,  1120. 

to  regulate  commerce,  424. 

to  coin  money  and  regulate  the  value  thereof,  1232,  1244.  See 
CoixAGE,  Eminent  Domain. 

guarantee  to  every  State  of  republican  government,  126. 

against  "  invasion  "  and  "  domestic  violence,"  126. 

to  establish  post-offices  and  post-roads,  116,  483. 

to  make  or  alter  regulations  for  the  election  of  senators  and  repre- 
sentatives, 520,  528. 

Congress  are  not  only  impliedly,  but  explicitly  authorized  "  to  make 
all  laws  that  shall  be  necessary  and  proper  for  executing  the 
powers  conferred  by  the  Constitution,"  99, 103, 104, 107, 1276, 1297. 


INDEX. 


1365 


GOVERNMENT  OF  THE  UNITED   STATES  — continued. 

"  necessary  and  proper,"  synonymous  with  "  needful,"  "  requisite," 
"essential,"  "conducive  to,"  "appropriate,"  106,  1297. 

such  is  the  rule  wherever  authority  is  delegated  in  writing,  and  it 
applies  with  peculiar  force  where  the  power  is  governmental,  and 
the  means  of  carrying  it  into  effect  can  neither  be  detailed  nor 
foreseen,  99,  116,  1265,  1296. 

the  clause  not  merely  enabling,  but  like  the  Tenth  Amendment, 
"powers  not  delegated  to  the  United  States  by  the  Constitution 
nor  prohibited  by  it  to  the  States,''  are  reserved  to  the  States  or  the 
people,  intended  to  have  a  sense  at  once  admonitory  and  directory 
and  to  require  that  the  means  used  to  execute  an  express  power 
shall  be  appropriate  to  the  end,  1276,  1278. 

where  an  implied  power  is  conducive  and  appropriate  to  the  execu- 
tion of  an  express  power,  the  degree  of  its  necessity  is  for  Con- 
gress, and  will  not  be  inquired  into  by  the  court,  107,  1295. 

the  grant  of  a  power  in  limited  form  does  not  preclude  the  use  of  a 
same  power  in  a  larger  form  when  necessary  to  carry  another 
enumerated  power  into  effect,  115,  1265,  1266. 

the  power  of  Congress  to  inflict  punishment  for  crime  limited  in 
terms  to  certain  offences,  but  extends  impliedly  to  every  breach  of 
the  laws  of  the  United  States,  115,  118,  1147,  1148. 

view  taken  by  Jefferson  of  these  points  in  the  Kentucky  Resolutions, 
115. 

instability  of  written  constitutions,  3. 

failure  of,  in  France,  4. 

the  Constitution  of  the  United  States  an  application  of  principles 
established  by  the  English  people  in  their  contest  with  the  crown 
to  the  requirements  of  the  Anglo-Saxon  race  on  this  side  the 
Atlantic,  9. 

endurance  of  the  Constitution  of  the  United  States  contrasted  with 
the  transitory  political  systems  of  France  and  the  transformations 
of  the  English  Constitution,  4,  6,  146. 

the  American  Revolution  like  the  English  Revolution  of  1688,  con- 
servative in  purpose,  10. 

advantages  and  disadvantages  of  written  as  compared  with  unwritten 
constitutions,  214,  216. 

Parliamentary  government  contrasted  as  an  exponent  of  the  national 
will,  with  presidential  government  in  the  United  States,  211. 

unsuited  to  a  merely  popular  constitution,  180. 

failure  of,  in  France,  and  growing  instability  in  England,  180. 

the  powers  of  the  government  of  the  United  States  are  those  enum- 
erated in  the  Constitution,  and  such  implied  powers  as  are  ne- 
cessary and  proper  for  carrying  the  principal  powers  into  effect,  94, 
99-110. 

it  is  limited  as  to  its  powers,  but  is  not  a  government  of  limited 
powers,  99. 

the  powers  which  it  has  are  sovereign  as  to  all  matters  within  their 
scope,  99,  1269,  1270. 

the  United  States  have  no  powers  except  those  conferred  in  terms, 


1366  INDEX. 

GOVERNMENT   OF  THE  UNITED   STATES— continued. 

or  by  a  reasouable  implication,  the  States  have  all  the  powers 
that  are  not  prohibited  by  the  Constitution  or  their  own  organic 
laws,  and  have  not  been  granted  to  the  United  States,  94,  95,  450, 
497. 

the  powers  of  the  United  States  are  an  actual  or  potential  restraint 
on  the  States,  and  when  they  conflict  with  the  powers  of  a  State 
the  latter  must  yield,  95-98. 

the  sovereignty  of  the  States  was  limited  even  under  the  confedera- 
tion and  still  further  restricted  by  the  Constitution,  15,  16,  26,  29- 
32,  54,  55. 

other  changes  in  the  same  direction  may  take  place  through  an 
amendment  adopted  by  three  fourths  of  the  States  against  the  will 
of  the  minority,  32. 

the  States  never  had  a  distinct  or  national  existcLce,  nor  have  they 
at  any  time  been  recognized  by  foreign  powers  as  sovereign  or 
independent,  15,  54. 

the  United  States  and  the  States  should  not  be  regarded  as  antagon- 
istic, but  as  parts  of  one  whole;  each  entrusted  with  functions 
which  are  essential  to  the  welfare  of  the  country,  and  could  not 
well  be  performed  by  the  other,  33,  35-38,  1180,  1182. 

there  are  in  each  State  two  legislatures,  one  local,  the  other  national, 
each  authorized  to  command  the  citizen  and  punish  him  if  he 
disobeys,  24,  1151. 

the  supremacy  of  the  United  States  is  maintained  by  declaring 
"  the  Constitution  of  the  United  States  and  the  laws  made  in 
pursuance  thereof,"  "  the  supreme  law  of  the  land,  anything  in  the 
Constitution  or  laws  of  any  State  to  the  contrary  notwithstanding," 
95,  1309. 

what  laws  are  in  pursuance  of  the  Constitution  ascertained,  and  the 
conflict  which  might  otherwise  ensue  averted  by  giving  the  federal 
courts  jurisdiction  of  all  cases  arising  under  the  Constitution  and 
laws  of  the  United  States,  28,  29,  120,  124,  135,  986,  996. 

when  the  question  is  not  political  the  Supreme  Court  is  the  inter- 
preter of  the  Constitution  for  the  United  States,  the  States,  and 
the  people,  120. 

which  of  two  rival  State  governments  is  legitimate  and  should  be 
upheld  by  the  United  States,  and  questions  arising  under  the 
clause  guaranteeing  a  republican  government  to  each  State  are 
political,  and  the  decision  rests  with  Congress,  124,  126. 

so  also  of  the  reconstruction  of  the  Southern  States  after  the 
rebellion,  130,  949. 

abuse  of  legislative  power,  as  by  undue  taxation  for  the  protection  of 
manufactures,  cannot  be  rectified  by  the  judiciary,  134. 

an  unconstitutional  law  is  none,  and  if  war  is  levied  against  the 
United  States  under  an  act  of  the  legislature,  or  an  ordinance  of 
secession,  the  conflict  is  not  with  the  State,  but  with  persons 
exercising  a  usurped  authority  in  her  name,  26,  57,  59,  139,  649, 
901,  903,  904. 

the  States  and  the  United  States  can  do  no  wrong,  and  no  act  done 


INDEX. 


1367 


GOVERNMENT   OF  THE  UNITED  STATES  — continued. 

under  a  command  or  law  of  either  can  vary  their  relations  as 
sovereigns,  or  impair  the  indestructible  Union  of  indestructible 
States  contemplated  by  the  Constitution,  26,  139,  903,  904,  910, 
911. 

levying  war  against  the  United  States  at  the  command  of  a  State 
treason  under  the  Third  Article  of  the  Constitution,  67,  1122. 

armed  resistance  to  the  oflBcers  or  forces  of  the  United  States,  not 
for  the  purpose  of  subverting  the  government  but  to  prevent  the 
execution  of  an  unconstitutional  act  of  Congress,  is  not  "  levying 
war"  or  treasonable,  68,  1128. 

persons  acting  under  an  illegal  command  from  a  State  or  the  federal 
government  are  trespassers  and  answerable  criminally  in  the  ordi- 
nary course  of  justice,  26,  57,  139,  903. 

this  principle  contrasted  with  the  droit  ad niinistratif  of  France,  141, 144. 
GOVERNMENTAL  POWERS.     See  also  Eminent  Domain;  Police 
Power  ;  Taxation  ;  Due  Process  of  Law. 

how  far  susceptible  of  surrender  or  alienation,  607,  621. 

taxation  may  be  surrendered  but  cannot  be  irrevocably  conferred,  608. 

eminent  domain  may  be  irrevocably  conferred  but  cannot  be  surren- 
dered, 609. 

the  police  power  may  be  delegated,  but  cannot  be  surrendered  nor 
irrevocably  conferred,  608,  609. 

Congress  may  exercise,  though  rights  arising  ex  contractu  are  thereby 
impaired,  755. 
GRADE    OF    STREETS.     See    Assessments;   Eminent    Domain; 

Streets. 
GRAND  JURY, 

guaranteed  by  the  Fifth  Amendment  as  regards  the  United  State?, 
862. 

not  guaranteed  by  the  Constitution  or  by  the  amendments  against  the 
States,  862,  864. 

amendment  of  indictment  afterfindingby  invalid  in  federal  courts,  864. 
GRANTS, 

of  land,  charters,  and  franchises,  contracts  within  the  meaning  of  the 
Constitution,  585,  588. 

by  the  legislature  when  ambiguous,  construed  in  favor  of  the  public, 
661. 
.  what  impairs,  735, 

statutory  grant  cannot  be  set  aside  because  it  was  procured  by  fraud, 
736. 

confirming  invalid,  does  not  impair  contracts,  738. 

GROUND  RENTS, 

an  act  of  assembly  authorizing  the  extinguishment  of  an  irredeemable 
ground  rent  on  compensation  made,  impairs  the  obligation  and  is  a 
deprivation  without  due  process  of  law,  338,  753. 

landlord  must  be  compensated  when  land  is  taken  under  right  of 
eminent  domain,  360. 


1368  INDEX. 

H. 

HABEAS  CORPUS  ACT, 

importance  of,  893, 

suspension  of,  505,  960-966. 

does  not  abrogate  other  guarantees  or  establish  martial  law,  505,  966. 

HAMILTON, 

as  a  soldier,  lawyer,  and  statesman,  7. 

on  the  supremacy  of  the  Constitution,  31,  1309. 

on  the  respective  representation  of  the  States  in  the  government,  34. 

in  the  Constitutional  Convention,  31,  34,  39,  46. 

as  a  writer  in  the  "  Federalist,"  41. 

in  the  New  York  Convention,  41,  78,  79. 

influence  in  securing  the  adoption  of  the  Constitution,  43. 

on  the  Patterson  and  the  Randolph  resolutions,  50,  51,  54. 

on  the  English  government,  194. 

on  the  taxing  power  of  the  federal  government,  243. 

on  the  power  to  incorporate  a  national  bank,  267,  1261. 

on  the  limited  powers  conferred  by  the  Constitution,  506. 

HAMPDEN, 

on  the  exaction  of  ship-money,  136. 

HARBORS, 

States  may  improve,  459. 

Congress  may  improve  without  consent  of  States,  486. 

HAYES, 

unsuccessful  effort  of  the  House  of  Representatives  to  shape  the  policy 
of,  175,  181,  212. 

HEALTH, 

police  power  of  the  States  for  protection  of,  455,  456,  465,  613,  617, 
652,  773-778. 

HEARING, 

person  may  not  be  deprived  of  life,  liberty,  or  property  without,  844, 
right  to,  in  tax  proceedings,  315-317. 

HENRY, 

on  the  Constitution  as  imperilling  the  sovereignty  of  the  States,  67, 

73,  77,  82. 
in  the  Virginia  Convention,  68,  69,  73,  80,  92. 

HIGHWAYS,     See  Street. 

power  of  Congress  to  build,  111,  246. 

assessment  of  damages  for  opening  streets,  301. 

appropriated  for  railroads  under  the  right  of  eminent  domain,  355, 

412. 
appropriation  of,  to  different  use,  360. 
laying  railroad  tracks  on,  362,  412,  665. 
vacation  of,  376. 


INDEX. 


1369 


HIGHWAYS  —  continued. 
State  control  of,  457. 
*    grant  of  use  or  occupancy  of,  to  private  persons  ordinarily  a  mere 
license,  665. 

HOUSE  OF  COMMONS.    See  English  Constitution  ;  Parliamknt. 
HOUSE  OF   LORDS, 

decadence  of ,  187. 

contrasted  with  the  Senate  of  the  United  States,  209. 

HUNTINGTON, 

in  the  Connecticut  Convention,  60. 


I. 

IMMIGRATION, 

States  may  hot  regulate,  470. 

control  of  general  government  over,  473. 

IMPAIRING  CONTRACTS.     See  Obligation  of  Contracts. 

IMPEACHMENT, 

right  of  Senate  to  try,  210. 
of  Andrew  Johnson,  211. 
preparation  of,  855. 

IMPLIED   POWERS, 

of  the  United  States  Government,  96,  99. 

IMPORTS, 

State  taxation  of,  253,  271. 

State  cannot  tax  or  discriminate  against  imports  from  other  States. 

IMPROVEMENTS.     See  Assessments. 

INCORPORATION.     See  Corporations  ;  Municipal  Corporations. 

INJUNCTION, 

will  not  ordinarily  be  issued  to  control  the  process  of  another  tribunal 

or  prevent  the  sheriff  or  marshal  from  levying  on  the  goods  of  one 

man  under  a  writ  against  another,  1214,  1226. 
department  of  State  or  federal  government  cannot  be  restrained  by 

injunction  unless  the  act  is  simply  ministerial,  129. 
State  court  cannot  enjoin  proceedings  of  federal  court  nor  can  federal 

court  issue  injunction  to  State  court,  1219,  1220. 
federal  officer  cannot  be  restrained  by  State  court  in  the  performance 

of  a  duty  imposed  by  Congress,  1213, 1216. 
exceptions  to  the  rule,  1220. 

INSPECTION    LAWS, 

power  of  the  States  to  pass,  461. 

INSURANCE,  POLICIES  OF, 
not  commercial  contracts,  479. 


1370  INDEX. 

INSURGENTS, 

one  may  not  sue  another  for  destroying  property  to  prevent  its  capture, 

764. 
may  be  dealt  with  as  enemies,  922,  926,  968. 

INTERCOURSE, 

commerce  includes,  476,  482. 
postal  service  as  a  means  of,  482. 
telegraphy,  482. 

INTERNAL   IMPROVEMENTS, 
taxation  for,  244. 
Madison's  views  on,  245. 
Monroe,  on,  245. 
veto  of  bills  for,  246-247. 

justifiable  when  they  are  essential  to  the  execution  of  a  power  spe- 
cifically conferred  on  Congress,  248,  486. 
roads  and  canals,  246-248. 
railways,  249. 
rivers,  248,  459,  486. 
harbors,  459,  486. 
works  of,  cannot  be  regarded  as  a  nuisance,  413.  , 

INTERPRETATION  OF  THE  CONSTITUTION, 

province  of  the  judiciary  with  respect  to.     See  Judiciary  (Fed- 
eral). 

to  be  drawn  from  the  instrument  itself,  2. 

language  held  in  debate  not  ordinarily  a  guide  in  the  interpretation 

of  the  Constitution  or  a  statute,  70,  1250,  1301. 
less  weight  due  in  this  regard  to  the  debates  of  the  federal  than  to 

those  of  the  State  conventions,  70,  1250. 
rule  that  a  command  in  excess  of  authority  is  void,  24,  28. 
Constitution  must  be  read  in  the  light  of  history,  530,  831. 

INTERSTATE   COMMERCE, 

State  tax  on  bills  of  lading  for  goods  shipped  to  another  State  invalid, 

252,  480. 
State  license  tax  on  persons  owning  and  running  boats  invalid,  2.54. 
State  tax  on  income  derived  from  property  employed  in  interstate 

commerce  valid,  254,  272. 
ferry  used  for,  not  taxable  by  State,  271,  322. 
interstate  telegraphic  messages  not  taxable  by  State,  271. 
sleeping-cars,  271. 

State  tax  on  interstate  freight  invalid,  272,  274,  275,  322,  477. 
State  tax  on  capital  or  general  receipts  of  a  company  engaged  in, 

valid,  272. 
discrimination  against  goods  of  another  State,  invalid,  273. 
tax  on  passengers  invalid,  272,  453,  461,  464,  474. 
imported  goods,  when  they  become  a  part  of  the  general  mass  of 

property,  may  be  taxed,  275,  468. 


INDEX. 


1371 


INTERSTATE   COMMERCE  —  continued. 

cannot  be  taxed  directly  or  indirectly  while  in  the  hands  of  the 
importer,  262,  467. 
IRELAND, 

recent  landlord  and  tenant  legislation  in,  involves  a  deprivation  with- 
out due  process  of  law  in  the  sense  of  the  term  as  employed  in  the 
Constitution  of  the  United  States,  760. 
IRRIGATION, 

taxation  for,  287-290. 

exercise  of  the  right  of  eminent  domain  for,  340. 


JACKSON, 

on  the  nature  of  the  United  States  government,  62. 

proclamation  against  nullification,  90,  134. 

on  the  power  of  Congress  to  incorporate  banks,  108,  212. 

relations  with  the  Supreme  Court,  119. 

his  career  as  an  illustration  of  the  power  that  may  be  exercised  by 
an  American  President,  173. 
JAY, 

articles  in  the  "  Federalist,"  41. 

in  the  New  York  Convention,  79. 

oil  the  preamble  of  the  United  States  Constitution,  100. 
JEFFERSON, 

on  insurrection  as  a  safeguard  of  liberty,  18. 

likens  the  President  to  a  Polish  king,  174. 

on  the  federal  coercion  of  a  State,  63. 

the  Kentucky  Resolutions,  115,  135. 

on  the  taxing  power  of  Congress,  243,  249. 

Louisiana  purchase,  244. 

JOHNSON, 

impeachment  of,  211. 
JUDGE-MADE  LAW.     See  Judicial  Legislation. 

JUDGMENTS, 

limitation  of  the  right  of  suits  on,  as  affecting  the  obligation  of  con- 
tracts, 716. 

whether  a  judgment  against  a  servant  can  be  made  conclusive  on  the 
maste?,  883. 

without  jurisdiction,  void,  1037. 
JUDICIAL    LEGISLATION, 

necessary  and  beneficial,  718. 

may  impair  contracts,  but  is  not  a  law  in  the  sense  of  the  constitu- 
tional prohibition,  718. 

judicial  interpretation  of  a  statute  is  a  law,  721. 

State  court  cannot  impair  a  contract  executed  on  the  faith  of  a  pre- 
vious interpretation  of  a  statute,  722. 

VOL.  II.  —  46 


1372  INDEX. 

JUDICIAL  LEGISLATION  — confinucrf. 
retroactive,  726. 

a  law  passed  in  the  same  terms  by  two  States  but  differently  inter- 
preted by  their  courts  will  be  treated  as  two  different  laws,  729. 

JUDICIAL    POWER.      See   Legislative   Exercise    of    Judicial 
Power. 
of  Congress,  850. 

JUDICIARY  (ENGLISH), 

relation  to  the  crown,  136, 162. 
relation  to  the  legislature,  156. 

may  set  aside  illegal  acts  of  the  several  departments  of  the  Govern- 
ment but  not  an  act  of  Parliament,  138. 
county  court  in  early  England,  150. 
Curia  Regis,  158. 

origin  of  the  Exchequer,  King's  Bench,  and  Common  Pleas,  158. 
origin  of  the  Judicial  Committee  of  the  Privy  Council,  162. 
Star  Chamber,  162. 

contest  between  James  I.  and  the  Judges,  163. 
independence  of,  166. 
contrasted  with  the  American  system,  212. 
control  over  court-martial,  957. 

JUDICIARY  (FRENCH), 

relations  to  the  executive,  140,  160. 

JURY.    See  Trial  by  Jury. 


E. 


KENTUCKY  RESOLUTIONS,  115.    See  Jefferson. 

KING, 

on  the  character  of  the  Articles  of  Confederation,  16. 
on  States*  rights  under  the  Constitution,  52. 

**KU  KLUX"  ACTS, 

constitutionality  of,  526,  540,  939. 


LABOR  ASSOCIATIONS, 

right  of  Congress  to  restrain,  542. 

LAND.     See  also  Eminent  Domain. 
origin  of  property  in,  334. 
flowing,  342. 


INDEX. 


1373 


LANSING, 

withdrawal  from  the  Constitutional  Convention,  34,  39. 
in  the  Constitutional  Convention,  49,  50,  67. 
in  the  New  York  Convention,  79. 

**LA\V  OF  THE  LAND."    See  also  Due  Process  of  Law. 

defined,  797,  845. 

a  law  passed  to  work  a  wrong,  not  the,  753. 

LEE, 

suggestion  that  Virginia  should  ratify  the  Constitution  condition- 
ally, 79. 

LEGISLATIVE  EXERCISE  OF  JUDICIAL  POWER, 
instances  of,  744. 
unconstitutional,  847. 

LEGISLATIVE  POWERS, 

distinguished  from  judicial  in  regard  to  eminent  domain,  345. 
distinguished  from  executive  and  judicial  powers,  545. 
cannot  be  delegated  so  as  to  preclude  resumption  of,  633. 
legislature  may  not  act  judicially,  847. 

LEX  TERR^, 

of  Magna  Charta,  749,  863. 

LIBERTY, 

what  constitutes  a  '*  deprivation  "  of,  777. 

LICENSE, 

grant  of  occupancy  of  a  highway  to  a  private  person  ordinarily  a 
mere,  665. 

LICENSE  TAX, 

exaction  of  fee  or  tax  for  license  to  sell  imported  goods  or  products 

of  other  States  invalid,  467,  468. 
80  also  of  exaction  of  higher  license  fee  from  citizens  of  other  States, 

276. 
State  license  tax  on  boats  engaged  in  foreign  or  interstate  commerce 

invalid,  254. 
on  foreign  corporations,  327. 

LIEN, 

law  divesting  a,  impairs  the  obligation  of  contract,  711. 
inchoate,  may  be  abrogated  without  impairing  contract,  712. 
invalid,  cannot  be  confirmed  by  the  legislature  as  against  purchas- 
ers, 804. 

LIGHTHOUSES, 

implied  power  of  Congress  to  erect  and  maintain,  108,  438. 

LIMITATION,   STATUTES  OF, 

retroactive,  does  not  impair  contract  if  sufficient  time  is  left  to  sue, 
713. 


1374  INDEX. 

LIMITATION",   STATUTES   OF  — continued. 

whether  the  bar  of  the,  may  be  removed  after  it  is  attached,  717,  83G, 

840. 
such  legislation  invalid  in  criminal  cases,  571,  810. 

LINCOLN'S  PROCLAMATION, 

an  order  for  the  confiscation  of  enemy's  property,  and  valid  so  far  as 
it  was  actually  carried  into  effect  during  the  war,  946. 

LIQUOR  TRAFFIC, 

prohibition  of,  456,  465,  613,  772. 

valid  though  contrary  to  antecedent  grant  or  charter,  456,  465,  613, 
772. 

LITTLETON, 

on  the  relation  of  the  crown  to  the  judiciary,  159. 

LIVINGSTON, 

in  the  New  York  Convention,  79. 

LOCAL  TAXATION".    See  Apportionment;  Assessment;  Municipal 
Corporations  ;  Taxation. 

LOTTERIES, 

may  be  suppressed  under  police  power,  even  when  previously  author- 
ized by  charter,  620. 

LOUISIANA, 

purchase  of,  244,  1146,  1306. 


M. 

MADISON, 

articles  in  the  "  Federalist,"  41. 

on  the  differences  of  opinion  in  the  Constitutional  Convention,  22. 

on  State  rights,  30,  31,  48,  52. 

in  the  Virginia  Convention,  41, 

influence  in  securing  the  adoption  of  the  Constitution,  43,  44. 

on  the  Patterson  and  the  Randolph  Resolutions,  50,  55,  56. 

on  the  federal  coercion  of  a  State,  61. 

on  conditional  ratification  of  the  Constitution  by  a  State,  78. 

on  the  nature  of  the  United  States  government,  80. 

on  the  source  of  the  Constitution,  86,  90. 

on  the  power  of  Congress  to  incorporate  banks,  108,  114. 

the  Kentucky  Resolutions,  135,  243. 

on  a  protective  tariff,  244,  271. 

on  the  taxing  power  of  Congress,  243. 

on  internal  improvements,  245,  246. 

MAGNA  CHARTA, 

relation  to  the  political  development  of  the  United  States,  20. 
its  restrictions  on  the  taxing  power  of  the  crown,  148. 
manner  of  summoning  Parliament  prescribed  by,  149. 


INDEX. 


1375 


MAGNA   CHART k  — continued, 
in  effect  a  statute,  167. 

as  bearing  on  the  origin  of  the  phrase  **  due  process  of  law,"  719. 
constitutions  of  some  of  the  States  follow  the  language  of,  750. 

MAIL, 

authority  of  Congress  over,  would  be  implied  from  the  power  to  regu- 
late commerce  if  it  were  not  expressly  given,  108,  4Si. 

MANDAMUS.     See  also  Federal  Courts. 

municipal  corporations  may  be  compelled  by,  to  levy  taxes  to  pay 

debts,  639,  647. 
may  be  frustrated  by  the  resignation  of  ofl&cers  or  repeal  of  the 
charter,  648. 

MARKETS, 

establishment  and  regulation  of  under  the  police  power,  781. 
grant  of  an  exclusive  right  to  hold  a  public,  781. 

MARRIED  WOMEN, 

defectively  acknowledged  deeds  of,  may  be  rendered  valid  by  statute, 
799. 

MARSHALL, 

as  an  interpreter  of  the  Constitution,  37,  120. 
on  the  nature  of  the  United  States  government,  90. 
on  the  enumerated  and  implied  powers  of  the  United  States  govern- 
ment, 107,  108,  112,  113,  116,  1277,  1290. 
on  the  functions  of  the  judiciary,  129. 
opinion  in  McCuUoch  v.  State  of  Maryland,  256. 
on  power  of  Congress  to  regulate  commerce,  431. 
on  impairing  the  obligation  of  contracts  and  grants,  598,  736,  738. 

MARTIAL  LAW, 

an  extension  of  the  police  power  to  the  exigencies  of  war,  761,  784, 

906,  921,  967. 
officers  and  soldiers  answerable  in  court  for  acts  done  under  martial 

law  without  reasonable  and  probable  cause,  763,  912-919. 
how  far  recognized  by  the  common  law,  906,  922-926. 
grows  out  of  and  is  limited  by  necessity,  761,  954-964. 
when  applicable  to  insurgents,  922. 

reasonable  and  probable  cause  for  belief  that  necessity  exists  suffi- 
cient, 917. 
where  such  cause  does  not  exist,  the  command  of  the  President  or 

other  civil  or  military  superior  is  not  a  justification,  763,  913-918, 

935. 
such  a  command  may  be  reasonable  and  probable  cause,  920. 
the  facts  are  for  the  jury,  but  whether  they  constitute  reasonable  and 

probable  cause  is  a  question  of  law,  764,  919. 
this  principle  disregarded  in  the  acts  of  March  3,  1863,  and  April, 

1871,  939,  971-973. 


1376  INDEX. 

MARTIAL  LAW  —  continued. 

causeless  arrests  and  imprisonments  and  arbitrary  deprivations  under 
color  of  those  statutes,  966,  972-974,  1083. 

whatever  force  is  requisite  for  the  protection  of  society  or  individuals 
against  fire  or  riot,  infection  or  invasion  or  insurrection,  is  also 
lawful,  761,  784,  908,  911,  921. 

how  far  it  may  be  exercised  over  insurgents,  922. 

power  of  sheriff  in  dispersing  a  mob  analogous  to  that  of  a  general 
during  invasion  or  insurrection,  906,  922. 

distinguished  from  military  law  and  military  government,  930. 

in  France,  956. 

in  England,  923,  957. 

in  the  United  States,  958. 

Congress  cannot  establish,  960. 

inhabitants  of  territory  occupied  by  invading  or  insurrectionary  force 
may  be  treated  as  enemies,  though  loyal,  948,  1130. 

jurisdiction  of  court-martial,  927,  933,  936,  950. 

when  jurisdiction  exists,  sentence  of  court-martial  conclusive  of  lia- 
bility of  the  accused  under  military  law,  934. 

when  it  does  not,  the  members  are  answerable  as  trespassers,  927, 933. 

court-martial  cannot  acquire  jurisdiction  by  finding  that  a  citizen  is  a 
soldier  or  enemy  contrary  to  the  fact,  927-933. 

court-martial  answerable  for  sentencing  citizens  unlawfully,  927,  933. 

military  law  a  code  established  by  Congress  for  such  persons  as 
become  liable  under  it  by  enlisting  or  being  drafted,  930,  940. 

jurisdiction  of  court-martial  under  military  law  applicable  only  to 
persons  in  the  military  or  naval  service  of  the  United  States,  934, 

cannot  be  rendered  exclusive  by  Congress,  935,  942-944. 

soldiers  answerable  to  State  tribunals  for  offences  against  the  muni- 
cipal law,  931,  935,  941,  1144. 

English  and  American  rule  in  this  regard  contrasted  with  that  pre- 
vailing on  the  continent  of  Europe,  141-143,  955-957. 

an  offence  against  the  municipal  law  may  also  be  a  breach  of  the 
military  law,  and  punishable  as  such  by  court-martial,  935. 

acquittal  by  court-martial  not  a  defence  to  an  indictment  for  the  same 
act  in  a  State  court  or  federal  court,  935. 

military  government  may  be  established  over  territory  occupied  by 
land  or  naval  forces  of  the  United  States  during  foreign  or  civil 
war,  948,  949. 

principle  applies  bello  nondum  cessante  as  well  asj^agrante  belloy  938. 

governments  established  during  the  war  with  Mexico  and  at  the  close 
of  the  Civil  War  by  virtue  of  this  principle,  945,  949. 

citizens  levying  war  against  the  United  States  are  enemies,  and  may 
be  sentenced  by  court-martial  for  offences  against  the  laws  of  war, 
though  not  for  treason  or  other  breach  of  the  municipal  law,  922. 

officers  and  soldiers  answerable  to  court-martial,  and  not  to  civil 
tribunals,  for  acts  done  against  enemies  during  a  foreign  or  civil 
war,  950. 

military  commissions  an  excrescence  of  courts-martials,  979. 


INDEX. 


1377 


MARTIAL  LAW  —  continued. 

rapid  growth  and  arbitrary  proceedings  of  these  tribanals  in  the 

United  States  during  the  Civil  War,  982. 
extension  of  military  jurisdiction  dangerous  to  freedom  in  rendering 
the  judges  dependent  on  the  power  which  institutes  the  prosecu- 
tion, 984. 
MARTIN, 

.      on  the  supremacy  of  the  United  States,  30,  32,  65,  66,  67,  75. 
in  the  Constitutional  Convention,  39. 

MASON, 

in  the  Constitutional  Convention,  39,  51. 

in  the  Virginia  Convention,  54,  72,  77. 

on  the  need  for  coercion,  58. 

on  the  Patterson  and  the  Randolph  Resolutions,  55. 

MASSACHUSETTS, 

legislation  regulating  mill-dams  in,  342. 
right  to  trial  by  jury  in,  864. 

MASTER  AND  SERVANT, 

whether  a  judgment  against  a  servant  can  be  made  conclusive  on  the 
master,  883. 

MATTHEWS,  MR.  JUSTICE, 

on  the  liability  of  a  State  for  the  misconduct  of  its  government,  138, 

-     899,  903. 
MAXIMS, 

the  king  can  do  no  wrong,  130,  135,  181,  894. 

applicable  to  the  States  and  the  United  States,  but  not  to  the  Presi- 
dent, 898,  903. 

rex  non  debet  esse  sub  homine,  sed  sub  Deo  et  lege^  136,  164. 

ubijus  ibi  remedium,  139. 

sic  utere  tuo,  ut  alienum  non  Icedas^  397,  400. 

one  may  do  what  he  will  with  his  own,  397. 

leges  posterior es  prior es  contr arias  abrogant,  655. 

oinnia  prcesumuntur  contra  proferentem,  660. 

expressio  unius  exclusio  est  alterius,  667. 

nothing  is  to  be  taken  for  granted  against  the  State,  668. 

quilibet  potest  renunciare  j'uri  pro  se  introductOj  698. 

qui  serins  solvit,  minus  solvit,  708. 

princeps  et  respublica  ex  justa  causa  possent  rem  meam  auferre,  761. 

consuetudo  est  optimus  interpres  legum,  835  n. 

contemporanea  expositio  est  optima  etfortissima  in  lege,  835  n.,  944. 

nemo  est  hceres  viventu^,  825. 

all  has  been  rightly  done  unless  the  contrary  appears,  851. 

quod  quis  ob  tutelam  corporis  suifecerit,jure  idfecisse  videtur,  909. 

res  perit  domino,  976. 
MECHANIC'S  LIEN, 

invalid,  cannot  be  confirmed  by  the  legislature  as  against  purchas- 
ers, 804. 


1378  INDEX. 

MILITARY  COMMISSIONS, 

established  by  Congress,  979. 
distinguished  from  courts-martial,  979. 

MILITARY  GOVERNMENT.     See  War  ;  Martial  Law. 
MILITARY  JURISDICTION, 

growth  of,  982. 

MILITARY  LAW.     See  Martial  Law  ;  War. 

MONOPOLIES, 

cannot  be  created  except  under  the  police  power,  778. 

are  not  contracts  and  may  be  destroyed  without  compensation,  780. 

exclusive  grants  to  lay  water  or  gas  pipe  in  highways  consid- 
ered, 781. 

what  may  be  denied  to  all  may  be  conferred  on  one,  782. 

exclusive  right  to  maintain  bridge,  ferry,  turnpike,  or  railroad  be- 
tween certain  points  not  invalid,  782. 

MONSTRANS  DE  DROIT, 

not  in  force  ii)  the  United  States,  888,  892. 

MORRIS,   GOUVERNEUR, 

in  the  Constitutional  Convention,  39,  46,  48,  53,  55,  87. 
MORTGAGE, 

of  a  vessel.     See  Ships  and  Shipping. 
MILITIA, 

regulation  of,  521. 
MILL  DAM.     See  Dam. 
MONEY.     See  Currency. 

taxation  of  State  bank-notes  by  general  government,  266,  271,  1275. 

evasion  of  the  constitutional  prohibition  on  the  States  from  issuing 
paper  money,  113,  267,  1255,  1263,  1267. 

under  the  exclusive  control  of  Congress,  269,  1233,  1237. 

MONROE, 

on  taxation  for  internal  improvements,  245. 

MUNICIPAL   CORPORATIONS, 

are  established  for  governmental  purposes,  627. 

charters  of,  may  be  revoked  or  modified,  627,  633. 

contracts  of,  obligatory  and  cannot  be  varied  or  annulled  legisla- 
tively, 629. 

powers  of,  630. 

mayor  and  councils  of,  may  be  superseded  by  commissioners  ap- 
pointed by  the  legislature,  630,  643,  648. 

such  commissioners  may  bind  the  corporation,  648. 

may  be  deprived  of  their  franchises,  633. 

subject  to  the  law  of  the  land,  633. 

legislature  may  assume  appointment  of  officers  of,  634. 

legislature  may  appoint  trustees  over  property  bequeathed  to,  for 
charitable  purposes,  634. 


INDEX. 


1379 


MUNICIPAL   CORPORATIONS  —  continued. 

whether  commissioners  may  be  appointed  to  determine  what  propor- 
tion of  a  debt  contracted  by  several  boroughs  shall  devolve  on 

each,  634. 
on  dissolution  of,  their  private  property  is  charged  with  a  trust  for 

creditors,  635. 
public  property  reverts  to  the  State,  635. 
public  property  of,  exempt  from  execution,  637. 
legislative  control  of  corporate  property,  637,  645. 
duty  of,  to  levy  taxes  to  pay  debts,  may  be  enforced  by  man  damus 

639,  647,  696. 
such  remedy  may  be  frustrated  by  the  repeal  of  the  charter,  648. 
taxes  cannot  be  laid  judicially,  639,  646. 
new  corporation  may  be  answerable  for  its  predecessor,  640. 
whether  the  legislative  dissolution  of,  without  providing  for  debts, 

does  not  impair  the  obligation  of  contracts,  640. 
inhabitants  of  incorporated  town  or  borough  not  liable  individually 

for  its  debts  on  the  repeal  of  the  charter,  644. 
liability  of  inhabitants  of  town  in  New  England  for  town  debts,  880. 
pledging  of  property  by,  to  secure  a  loan  for  gas  works,  645. 
legislature  cannot  exempt,  while  in  being,  from  paying  their  debts, 

647. 
public  agencies  and  offices  revocable  by  State,  650. 
salaries  of  mayors  or  other  officers  may  be  reduced  during  their 

tenure,  650. 
power  to  issue  bonds  in   aid   of  industrial  enterprises,  278,   283, 

629,  809. 
taxation  of  rural  property  for  urban  improvements,  299. 
may  charge  abutting  or  neighboring  owner  with  cost  of  opening  and 

paving  streets,  301. 
but  not  with  cost  of  repairs  or  of  laying  new  or  different  pavement, 

306. 
right  to  subscribe  to  stock  of  a  railway,  307,  582,  629. 
right  to  vacate  highways,  376- 
legislature  may  ratify  municipal  act  or  contract  made  ultra  vires, 

807-809. 
MUTINY  ACT  (ENGLISH), 
its  origin,  942. 

N. 


NATIONAL  BANKS.     See  Banks. 
NAVIGABLE  RIVERS.     See  Rivers. 

power  of  States  to  bridge,  4.57,  487,  497. 

may  be  bridged  by  Congress,  496. 
NAVIGATION.     See  Interstate   Commerce;  Rivers;  Ships  and 
Shipping. 

commerce  includes,  433. 


1380  INDEX. 

"NECESSARY  AND  PROPER," 

meaning  of  as  used  in  the  Constitution,  103-108,  1277,  1292,  1297. 
the  necessity  need  not  be  physical  or  absolute,  and  may  result  from 

the  duty  of  employing  appropriate  means  for  the  fulfilment  of  an 

agency  or  trust,  103,  108,  1292,  1297. 

NECESSITY.     See  Martial  Law. 

may  give  the  law,  without  a  statute,  760,  784. 
tearing  down  houses  to  check  a  fire  or  pestilence,  761. 
whether  necessity  exists,  a  judicial  question,  764. 
as  a  justification  in  peace  and  war,  908.       / 
martial  law  may  be  exercised  under,  954,  964. 

NEGLIGENCE, 

right  of  eminent  domain  does  not  excuse,  402. 

examples  of  negligent  use  of  land  to  the  detriment  of  others,  450. 

NEUTRALITY.     See  Federal  Courts. 

NICHOLAS, 

in  the  Virginia  Convention,  69. 

NOMINATING   CONVENTION, 
election  by  caucus,  220,  223. 

NON-RESIDENT  PARTIES, 

taxation  of,  318,  321. 

taxing  of  debts  due  to,  319,  680. 

State  may  attach  debts  of,  for  taxes,  682. 

NON-SUIT, 

power  to,  does  not  violate  right  to  trial  by  jury,  876. 

NORTH  BRITON, 

warrants  against  publishers  and  authors  of,  831. 

NORTH  CAROLINA, 

stay  laws  in,  708,  709  n. 

NOTICE.    See  Due  Process  of  Law. 
right  to,  in  tax  cases,  315-317,  871. 

retroactive  confirmation  of  invalid  will  or  lien  cannot  be  made  as 
against  purchaser  without,  803. 

NUISANCE, 

works  of  internal  improvements  cannot  be  regarded  as,  413. 

when  bridges  over  navigable  streams  are,  they  may  be  abated, 

490. 
may  be  abated  though  authorized  by  charter,  615. 
cannot  be  authorized  by  Congress  without  compensation,  756. 
legislature  cannot  declare  innocent  things  nuisances  under  the  police 

power,  774. 

NULLIFICATION.     See  State  Rights. 


INDEX. 


1381 


o. 

OBLIGATION  OF  CONTRACTS, 

invalidity  of  laws  impairing,  97,  575. 

the  prohibition  of  laws  impairing,  a  salutary  check  on  the  States,  216. 

applies  only  to  past  contracts,  676. 

is  binding  on  the  States,  and  not  on  individuals  or  Congress,  511, 

534,  575,  1239,  1279. 
a  tax  law  requiring  a  treasurer  of  a  corporation  to  retain  a  portion 

of  the  interest  of  non-resident  bondholders  impairs  the,  320. 
a  statute  providing  a  remedy  against  pre-existent  corporations  for 

consequential  damages,  held  in  Pennsylvania  to  impair,  422. 
Congress  has  no  jurisdiction  over  contracts,  534. 
historical  reasons  for  inserting  in  the  Constitution,  572-575. 
what  constitutes  a  contract  in  the  sense  of  the  prohibition,  576. 
a  grant  to  one  man  may  operate  as  a  contract  with  another  who 

relies  on  the  expectation  which  it  holds  forth,  576,  587. 
judgments  confessed  ex  contractu  and  all  debts  are  within  the  scope 

of  the  prohibition,  578. 
contracts  of  a  State  protected,  579. 
contracts  between  States,  581. 
subscriptions  by  towns  to  railways,  582. 

executed  contracts  can  no  more  be  impaired  than  executory,  584. 
.  grants  and  executed  sales  are  contracts,  584. 
grants  of  franchises  are  contracts,  586. 

grant  of  franchise  may  not  be  impaired  to  the  prejudice  of  an  as- 
signee, 586. 
exemption  from  taxation  may  operate  as  a  contract,  588. 
whether  a  consideration  is  essential  to  a  grant  of  an  exemption  from 

taxation,  589-595. 
where  there  is  no  public  use  the  grant  is  void,  593,  604. 
charter  of  incorporation  is  a  contract  which  may  not  be  impaired,  597. 
State  cannot  impose  restrictions  which  will  render  the  charter  less 

beneficial,  599. 
State  cannot  remove  toll-gate  of  a  turnpike  company,  600. 
granting  a  remedy  to  enforce  an  antecedent  right  does  not  impair, 

421,  601. 
grant  of  exclusive  right  to  supply  gas  or  water,  or  to  build  a  railroad 

or  bridge,  may  be  resumed  under  right  of  eminent  domain,  609. 
grant  of  right  of  emhient  domain  irrevocable,  609. 
injurious  grant  or  privilege  revocable,  610. 
change  of  procedure  in  administering  justice  does  not  impair,  623, 

689,  703. 
revoking  charter  of  a  municipal  corporation  does  not  impair,  627. 
whether  the  legislative  dissolution  of  municipal  corporations  without 

providing^for  debts  impairs,  640. 
public  or  municipal  office  may  be  abolished  without  impairing,  650. 
salary  of  public  officer  may  be  reduced  without  impairing,  650. 


1382  INDEX. 

OBLIGATION  OF  COliiTR ACTS  — continued. 

constitutional  provision  that  charters  shall  be  revocable  precludes  an 
absolute  grant,  653. 

whether  the  reservation  by  a  State  of  power  to  annul  private  con- 
tracts would  be  valid,  654. 

does  not  authorize  abrogation  of  rights  of  property,  656. 

under  such  provision  charter  must  not  be  repealed  arbitrarily,  656. 

what  cause  is  sufficient,  a  legislative  question,  658. 

what  constitutes  the  obligation  which  may  not  be  impaired,  673-676. 

the  obligation  will  be  impaired  by  impairing  the  remedy,  671,  690. 

law  modifying  the  remedy  does  not  impair  the,  if  a  sufficient  remedy 
remains,  677,  691,  696,  705. 

duty  of  the  States  relative  to  the,  defined,  677. 

retroactive  statutes  considered,  677,  692. 

any  variation  of  the  contract  impairs  the  obligation,  678. 

tax  on  the  debt  cannot  be  deducted  by  the  debtor,  680. 

State  may  attach  debts  of  non-resident  creditors  without  impairing,  682. 

postponement  of  period  at  which  execution  may  issue,  impairs,  690. 

laws  authorizing  debtor  to  redeem  after  judicial  sale,  held  invalid,  692. 

statute  exempting  persons  in  the  service  of  the  United  States  fi'om 
process  impairs,  693. 

indefinite  stay  of  execution  impairs,  692,  708. 

reasonable  stay  of  execution  valid,  694. 

right  to  distrain  may  be  abolished  retroactively,  698. 

right  of  mortgagor  to  redeem  cannot  be  taken  away  retroactively,  701. 

law  withdrawing  propertj'  from  execution  impairs,  701,  708. 

exempting  necessary  tools  and  implements  an  exception,  702. 

what  change  in  the  remedy  impairs,  706. 

law  divesting  a  lien  impairs,  711. 

inchoate  liens  may  be  abrogated  without  impairing,  712. 

a  law  abrogating  a  technical  defence  does  not  impair,  712. 

laws  affecting  the  means  of  proof  may  impair,  713. 

changes  in  statutes  of  limitation  may  impair,  713. 

limitation  of  the  right  of  suits  on  judgments  as  affecting  the,  716. 

in  considering  whether  a  law  impairs,  the  federal  court  will  deter- 
mine for  itself  whether  the  contract  is  void  or  valid,  719. 

judicial  misinterpretation  of  a  statute  may  impair,  722. 

State  court  cannot  impair  a  contract  executed  on  the  faith  of  a  pre- 
vious interpretation  of  a  statute,  722. 

a  constitutional  change  or  amendment  impairing  the,  invalid,  732. 

law  exonerating  vendor  from  obligation  to  deliver,  impairs,  734. 

law  divesting  grantee  and  reinstating  grantor,  impairs,  734. 

law  transferring  the  thing  granted  to  a  third  person,  735. 

confirming  invalid  grants  does  not  impair,  738. 

technical  defects  may  be  cured  retroactively,  740. 

disabilities  imposed  for  public  ends  may  be  repealed  retroactively,  742. 

a  law  making  a  contract  valid  which  was  invalid  at  common  law  does 
not  impair,  743,  788. 


INDEX. 


1383 


OBLIGATION  OF   CONTRACTS  — continued. 

breach  of  condition  cannot  be  cured  retroactively,  744. 

importance  of  the  prohibition  before  the  enactment  of  the  Fourteenth 

Amendment,  744. 
the  prohibition  compared  with  the  Fifth  and  Fourteenth  amendments, 

754. 

OFFICE, 

in  a  municipal  corporation  is  a  mere  agency,  650. 

grant  of  an  office  in  a  municipal  corporation  revocable  by  the  State,  650. 

ordinance  reducing  salary  of  mayor  during  term,  valid,  650. 

statute  binding  State  to  an  employment  of  an  officer  during  a  fixed 

period  cannot  be  repealed,  651. 
statute  exempting  persons  serving,  under  the  United  States  from 

process  unconstitutional,  693. 

OLEOMARGARINE, 

regulation  of  manufacture  and  sale  of,  773,  775. 

OMNIPOTEISrCE  OF  PARLIAMENT.     See  Parliament. 

OWNER, 

who  is  entitled  as  for  the  taking  of  property  for  public  use,  355. 

liability  of,  for  injurious  consequences  of  acts  done  on  his  own  land, 
398-401. 

how  far  liable  for  the  escape  of  fire-sparks,  filth,  water,  etc.,  in  the 
absence  of  negligence,  398,  400,  403,  404-409. 

how  far  answerable  for  depriving  the  adjacent  house  or  land  of  sup- 
port by  excavating  his  own  land,  398. 

not  answerable  for  the  diversion  of  surface  water  or  the  waters  of  the 
sea  or  river  from  his  own  land  though  injurious  to  others,  409,  410. 

not  liable  in  Pennsylvania  for  polluting  a  stream  which  flows  through 
his  land  with  the  drainage  from  his  mine,  399. 

application  of  these  principles  to  acts  done  by  railroad  and  municipal 
corporations,  on  land  acquired  through  the  exercise  of  the  right  of 
eminent  domain,  or  under  an  authority  conferred  by  the  legislature, 
402,  408,  410,  413,  756. 

that  which  would  be  a  nuisance  if  done  by  a  company  or  an  individual 
on  their  own  land  for  a  private  purpose  cannot  be  done  under  an 
authority  from  the  legislature  for  a  public  purpose  without  com- 
pensation, 402,  411,  413,  418,  756,  758. 

rule  in  Pennsylvania,  412,  414,  422. 


P. 

PAPER  MONEY, 

power  of  Congress  to  issue,  113,  267,  1267,  1293. 
PARLIAMENT  (ENGLISH), 

origin  of  Parliamentary  power  of  taxation,  149. 
manner  of  summoning  prescribed  by  Magna  Charta,  149. 


1384  INDEX. 

PARLIAMENT   (ENGLISH)  —  continued. 

knights  of  the  shire  summoned  in  the  reign  of  John,  150. 

burgesses  summoned  by  Simon  de  Montfort,  15L 

knights  and  burgesses  coalesce  in  the  lower  house,  151. 

origin  of  the  judicial  power  of  the  House  of  Lords,  161. 

sovereignty  of,  167. 

modern  ascendency  of  the  House  of  Commons,  167,  181. 

ministerial  responsibility  considered,  178. 

Parliamentary  obstruction,  178. 

decadence  of  the  House  of  Lords,  187. 

royal  prerogatives  wielded  by  the  Commons  through  the  Cabinet,  188. 

dissolution  as  a  check  on  the  Commons,  191. 

defects  in  Parliament  representation  at  the  close  of  the  eighteenth 

century,  196. 
rotten  and  nomination  boroughs,  196. 
the  reform  movement,  204. 
Reform  Act  of  1832,  6,  188,  204. 
Reform  Act  of  1867,  206. 
omnipotence  of  Parliament,  213,  572. 

PARLIAMENT  OF  PARIS, 

derivation  from  the  Cour  du  Roif  160. 

PARTITION, 

necessary  selling  of  land  for,  not  a  deprivation  without  due  process  of 
law,  814. 
PATTERSON, 

federal  plan  proposed  to  the  Constitutional  Convention,  48,  51,  56. 

PENDLETON, 

in  the  Virginia  Convention,  68. 

PENNSYLVANIA, 

method  of  amending  the  Constitution  in,  216. 

ground  rents  in,  338,  753. 

private  ways  in,  344. 

State  control  over  highways  in,  378. 

rule  as  to  consequential  damages  in,  385,  759. 

rendering  a  stream  impure  without  negligence  is  in,  damnum  absque 
injuria  J  399. 

injury  for  change  of  grade  must  be  compensated  for  in,  420. 

a  statute  providing  a  remedy  against  pre-existent  corporations  for 
consequential  damages  held  in,  to  impair  the  obligation  of  con- 
tracts, 422,  602. 

appointment  of  commissioners  in,  to  supersede  mayor  and  councils  of 
Philadelphia  in  erecting  bridges  and  buildings,  630. 

how  power  of  legislature  over  municipal  corporations  is  limited  in,  by 
constitution  of  1874,  649. 

rule  as  to  waiver  of  exemption  in,  698. 

trial  by  jury  may  be  withheld  in,  in  creating  a  new  offence,  861. 

rule  as  to  amendment  of  indictment  after  jSnding  by  grand  jury,  866. 


INDEX. 


1385 


PETITION,   DE  DROIT, 

not  in  force  in  the  United  States,  888,  892. 
PEWS, 

nature  of  property  in,  651. 
PILOTAGE, 

State  and  federal  control  over,  452. 
PINCKNEY, 

in  the  Constitutional  Convention,  40. 

in  the  South  Carolina  Convention,  41. 

PIRACY.     See  Federal  Courts. 
PITT,  WILLIAM,  204. 

POLICE  POWER, 

reserved  to  the  States  and  cannot  be  exercised  by  Congress  for  any 
purpose  not  within  the  enumerated  powers,  530,  539,  766,  1120. 

Civil  Rights  Bill  unconstitutional  on  this  ground,  536. 

in  the  District  of  Columbia,  the  territories,  and  places  ceded  uncon- 
ditionally by  the  States,  the  entire  police  power  is  vested  in  the 
United  States,  1141,  1146. 

property  may  be  destroyed  under,  and  arrests  made  without  warrant, 
and  arms  employed  when  necessary  for  the  protection  of  society  or 
of  individuals,  761-763. 

may  be  exercised  without  an  authority  from  the  legislature  where 
.  there  is  reasonable  and  probable  cause  for  believing  that  such 
necessity  exists,  and  cannot  be  exercised  by  the  legislature  when 
there  is  no  such  cause,  762-765,  968. 

application  of  this  principle  to  exigencies  arising  from  fire,  pestilence, 
tempest,  riot,  invasion,  or  insurrection,  909,  911. 

as  applied  during  war  known  as  martial  law,  784,  929.  See  Mar- 
tial Law. 

property  devoted  to  public  use,  railways,  warehouses,  markets,  may 
be  regulated  under,  768. 

such  regulation  must  not  amount  to  the  deprivation  which  the  Consti- 
tution forbids,  770. 

acts  regulating  the  charges  of  warehouses  valid,  456,  768. 

a  State  may  prescribe  the  rates,  charges,  speed,  stops,  etc.,  of  railways 
within  her  bounds  if  the  act  is  not  so  worded  as  to  operate  on  inter- 
state commerce,  457,  477,  479,  768. 

State  may  not  regulate  so  much  of  the  voyage  or  journey  as  lies  within 
the  State  if  the  act  operates  as  a  regulation  of  interstate  commerce, 
477,  479. 

Congress  may  exercise  a  like  control  over  interstate  transportation, 
477,  479. 

requiring  master  of  a  vessel  to  furnish  list  of  passengers  within,  273. 

of  States  cannot  impair  any  power  of  the  general  government,  274, 
466. 

taxation  in  aid  of,  298. 

of  the  States  generally,  454,  766. 


1386  INDEX. 

POLICE  POWER  —  continued. 

quarantine  regulations,  455. 

liquor  laws,  456,  465,  613,  772. 

regulation  of  transportation  within  State  limits  valid  under  the, 
457,  768. 

erection  of  a  dam  across  navigable  creek  to  drain  an  unhealthy  swamp 
a  legitimate  exercise  of,  488 

a  trade,  manufacture,  or  business,  which  is  prejudicial  to  health  or 
morals  may  be  prohibited  under,  though  authorized  by  charter, 
616. 

restriction  on  burials,  617,  652. 

suppression  of  lotteries  under,  620. 

regulation  of  the  manufacture  and  sale  of  deleterious  food  and  bev- 
erages, 772-778. 

State  regulation  of  the  manufacture  and  sale  of  oleomargarine,  773, 
775. 

must  not  be  exercised  without  sufficient  cause,  618. 

exclusive  grants  for  the  sake  of  health  or  morals  under,  may  be  abro- 
gated on  the  same  grounds,  619,  780. 

cannot  be  irrevocably  sold  or  parted  with,  621. 

stay  and  exemption  laws  may  be  valid  under,  700. 

•whether  debtors  can  waive  benefit  of  stay  or  exemption  consistently 
with,  700. 

legislative  exercise  of,  may  be  reversed  by  the  courts,  772. 

legislature  cannot  declare  innocent  things  nuisances  under  the,  774. 

privileges  given  under  the,  are  revocable,  780. 

establishment  of  markets  under,  781. 

POLITICAL  CLUBS, 

their  power,  228. 

POLITICAL   PATRONAGE, 

its  evils,  226,  230-233. 

moral  servitude  of  the  office-holder  in  the  United  States,  237. 

POLK,  JAMES  K., 

action  of,  in  precipitating  the  Mexican  War,  172. 

POSTAL  SERVICE, 

under  exclusive  control  of  Congress,  482-784. 

PREAMBLE, 

may  be  considered  in  determining  the  object  of  an  enactment,  101. 
to  the  Constitution  of  the  United  States,  101. 

PREROGATIVE, 

a,  now  controlled  by  the  House  of  Commons,  190. 

PRESIDENT   OF   THE   UNITED   STATES, 

his  position  contrasted  with  the  English  executive,  170,  173. 
his  power  as  to  peace  and  war,  172,  174. 
the  independent  position  of,  174. 


INDEX. 


1387 


PRESIDENT  OF  THE   UNITED   STATES  — continued. 
compared  to  a  Polish  king  by  Jefferson,  174. 
contrasted  with  an  English  prime  minister,  222. 
comment  on  the  Presidential  election  of  1876,  175. 
power  of  the  President  to  choose  his  Cabinet,  180. 
the  doctrine  that  the  king  can  do  no  wrong  inapplicable  to,  894. 
exempt  from  process  during  his  term  of  office,  144,  145. 
may  be  removed  by  impeachment,  171,  210. 
cannot  be  compelled  to  attend  as  a  witness,  145. 
Governor  of  a  State  entitled  to  a  like  privilege,  144. 
can  Congress  render  the  President  a  dictator,  174,  938,  970. 
acts  done  under  color  of  order  from,  972. 

PRESUMPTION, 

of  correctness  of  legislative  motives,  660. 

surrender  of  governmental  powers  will  not  be  presumed,  667. 

that  legislative  acts  are  constitutional,  704. 

PRIMARY  ELECTIONS, 
abuses  of,  225. 

PRIVATE   BUSINESS, 
taxation  to  aid,  283. 

PRIVATE  PROPERTY.     See  Eminent  Domain. 

appropriation  of,  under  right  of  eminent  domain,  353. 
of  municipal  corporations,  643. 

PRIVATE   WAYS, 

land  condemned  for,  344. 

PRIVATE  WRONGS, 

not  punishable  by  Congress,  538. 

PRIVILEGE  OF  DEBATE, 

in  Congress,  854. 

PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS.    See  Citizens. 

in  the  several  States,  512. 
what  they  consist  of,  518. 

PRIVY  COUNCIL, 

origin  of  judicial  committee,  162. 

PROCEDURE, 

laws  changing,  subsequently  to  offence,  ex  post  facto,  568. 
change  of,  in  administering  justice  does  not  impair  the  obligation  of 
a  contract,  623,  689,  703,  825. 

PROHIBITORY  CLAUSES   OF  THE   CONSTITUTION, 

considered,  510-522. 
object  of,  504-508. 

addressed  in  general  to  the  States  or  the  United  States,  508, 521,  530. 
when  binding  on  individuals,  512. 
relating  to  right  of  trial  by  juiy,  515,  858. 
VOL.  II.  —  47 


1388  INDEX. 

PROHIBITORY  CLAUSES  OF  THE  CONSTITUTION  —  confrnweff. 

to  right  to  keep  and  bear  arms  and  assemble  for  lawful  purposes, 
521,  523. 

to  denial  or  abridgment  of  the  right  of  suffrage  on  account  of  race  or 
color,  524. 

the  right  of  the  citizens  of  each  State  to  the  privileges  and  immuni- 
ties of  citizens  in  the  several  States,  512. 

of  unreasonable  searches  and  seizures,  509,  830. 

apply  exclusively  to  the  United  States,  unless  States  are  named  or 
manifestly  intended,  532. 

prohibitions  laid  on  the  States  do  not  apply  to  individuals,  or  enlarge 
the  power  of  the  United  States  except  as  regards  the  States,  534. 

prohibition  of  laws  impairing  the  obligation  of  contracts,  572. 

of  biUs  of  attainder  and  ex  post  facto  laws,  544. 

of  deprivation  without  due  process  of  law,  746. 

Fourteenth  Amendment,  a  restraint  only  on  the  States,  532-534. 

Thirteenth  Amendment  a  restraint  on  the  United  States,  the  States, 
and  the  people,  536,  541. 

PROHIBITORY  LIQUOR  LAWS.     See  Liquor  Traffic  ;  Police 
Power  of  the  State. 

PROOF, 

laws  affecting  the  means  of,  may  impair  the  obligation  of  contracts, 
713. 

PROPERTY.     See  Eminent  Domain. 
defined,  357,  393,  759,  823. 

appropriation  of,  under  the  right  of  eminent  domain,  331. 
appropriation  of,  from  pressing  public  necessity,  761,  764,  907. 
right  to  exercise  trade  or  vocation  is,  779. 

what  is,  in  the  sense  of  the  Fifth  and  Fourteenth  Amendments,  823. 
choses  in  action  are,  824,  1280. 
an  expectancy  is  not,  825. 

contingent  interests  and  remainders  are  not,  828. 
in  papers,  830. 
a  man  may  have  a  right  of,  in  a  defence,  841. 

PROTECTIVE  TARIFF, 

right  to  tax  consumers  for  the  benefit  of  manufactures  a  political, 

not  a  legal  question,  133. 
nullification  as  a  remedy  against,  133. 
Madison's  views  on,  244,  271. 
unequal  operation  of,  281. 

PUNISHMENT.    See  also  Federal  Courts. 

implied  power  of  Congress  to  inflict,  for  violation  of  its  laws,  108, 
115,  1148. 


INDEX. 


1389 


QUARANTINE, 

State  laws  regulating,  455,  466,  501. 
QUO  WARRANTO, 

jury  trial  not  necessary  in  proceedings  on,  868. 


R. 

RAILROADS.    See  Elevated  Railways  ;  Street  Railways. 
Congressional  regulation  of.     See  Interstate  Commerce. 
power  of  Congress  to  build,  111,  249. 
State  taxation  of  railroads  built  by  Congress,  261. 
sleeping-cars  used  in  interstate  travel  not  taxable  by  State,  271. 
subscription  to  stock  of,  by  a  municipality,  307. 
taxation  of  rolling-stock  of,  322. 
condemnation  of  land  for,  350. 
laying  tracks  on  highways,  362. 

sparks  from  locomotives,  391,  400,  402,  404,  407,  408,  413,  603,  756. 
flooding  of  land  by  embankment,  393. 
State  control  of,  477. 
-      regulation  of  rates  of,  478,  611,  667,  768,  771. 
long  and  short  haul,  478. 

excluding  colored  persons  from  railway  trains,  541. 
grant  of  exclusive  right  to  build,  609,  782. 

RANDOLPH, 

in  the  Constitutional  Convention,  39,  40. 

resolutions  proposed  in  the  Constitutional  Convention,  48,  51,  56. 

adoption  of  the  resolutions,  53,  55. 

on  the  abuse  of  legislative  power  by  the  States,  545. 

RATES.    See  Railroads. 

RATIFICATION, 

by  legislature  of  irregular  act  of  a  corporation,  809. 

RATIFICATION  OF  THE  CONSTITUTION.    See  Conventions  of 
the  States. 
the  method  proposed  by  Congress  and  the  method  recommended  by 
the  Convention,  38. 

RECONSTRUCTION  LEGISLATION, 

after  the  close  of  the  Civil  War  in  America,  131,  609,  747,  948. 

RECORDING  ACTS, 

act  requiring  pre-existent  deeds  and  contracts  to  be  recorded  does  not 
impair  the  obligation  if  a  reasonable  time  is  given  for  compliance, 
715. 


1390  INDEX. 

REFORM   ACT  OF  1832  IN  ENGLAND, 
effects  of,  6,187. 
how  carried,  188. 
the  reform  movement,  204. 

REGISTRATION  OF  VESSELS.    See  Ships  and  SnippiNa. 

REGISTRY  LAWS, 

as  affecting  the  obligation  of  contracts,  715. 

REGULATION, 

of  commerce.    See  Foreign  Commerce  ;  Interstate  Commerce. 

RELIGIOUS  LIBERTY, 

not  guaranteed  by  the  Constitution  against  the  several  States,  556. 

REMEDY.      See    also    Consequential    Damage;     Obligation    op 

Contracts. 
legislature  may  provide  a  remedy  to  enforce  antecedent  rights,  421, 

601. 
as  an  element  of  a  contract,  675. 
lavir  modifying  the,  does  not  impair  the  obligation  of  a  contract  if  a 

sufficient  remedy  remains,  677,  691,  696,  705. 
what  changes  in  the,  impair  contracts,  706. 

REMOVAL  OF  CAUSES.     See  Federal  Courts. 

REPRESENTATION, 

in  Senate  and  House,  33. 

REPRESENTATIVE  INSTITUTIONS, 

their  political  and  social  value,  155,  156. 

RESERVATION   OF    POWER    TO  REVOKE    CHARTERS.      See 
Obligation  of  Contracts. 

RETROACTIVE   LEGISLATION.     See  also  Due  Process  of  Law; 

Ex  Post  Facto  Law;  Judicial  Legislation;  Obligation  of 

Contracts;  Statutes. 
not  necessarily  unconstitutional,  787. 
inclination  of  the  courts  against,  812. 
right  of  distress  may  be  abolished  retroactively,  698. 

REVOLUTION,   AMERICAN, 
a  defensive  struggle,  10, 
self-government  unaffected  by,  11. 
condition  of  the  country  at  its  close,  18. 

RHODE  ISLAND, 

charter  government  of,  10. 
Dorr's  insurrection,  125. 

RIOT, 

what  force  may  be  used  to  suppress,  906,  922. 

soldiers  called  in  to  suppress,  act  as  citizens,  and  are  answerable  in 
court,  606. 


INDEX. 


1391 


RIVERS, 

power  of  Congress  over,  248,  459. 

power  of  the  States,  457,  459,  487. 

may  be  bridged  by  State  when  wholly  within  her  boundaries,  459. 

distinction  between  dams  across  navigable  rivers  and  over  private 
streams,  412. 

the  States  and  the  federal  government  have  concurrent  power  to  im- 
prove, 459. 

Congress  may  improve  without  consent  of  States,  486. 

State  may  prohibit  any  persons  except  her  own  citizens  from  planting 
oysters  in  navigable  rivers  and  waters,  512. 

ROADS.     See  Highways. 

"ROTTEN"   BOROUGHS, 

defined,  196. 

RUSH, 

in  the  Pennsylvania  Convention,  74. 


S. 
SALARY.     See  Office. 

SCHOOLS, 

taxation  for,  284,  309. 

exercise  of  right  of  eminent  domain  for,  337. 

SEARCHES  AND   SEIZURES.     See  Warrants. 
unreasonable  searches  and  seizures  prohibited,  830. 
general  warrants  in  England,  831. 

SEARCH-WARRANTS.    See  Searches  and  Seizures. 

SELF  DEFENCE, 
right  of,  924. 

as  exercised  by  the  community,  the  source  of  the  police  power  and 
martial  law,  907,  924. 

SENATE  OF  THE  UNITED  STATES.     See  also  Congress. 
contrasted  with  the  House  of  Lords,  209. 
represents  the  States,  209. 
right  to  try  impeachments,  210. 

SERVITUDE.     See  Slavery. 

what  constitutes,  within  the  Thirteenth  Amendment,  542. 

SHARSWOOD, 

on  enumerated  powers,  112. 

on  the  power  to  coin,  1244. 

on  the  right  of  Congress  to  emit  bills  of  credit,  1299. 

SHERIFF, 

power  of,  to  suppress  riots,  906,  922. 

analogous  to  that  of  a  general  in  suppressing  an  insurrection ;  may 
call  the  military  in  aid  of  civil  power,  906,  922. 


1392  INDEX. 

SHERMAN, 

in  the  Constitutional  Convention,  53. 

SHIPS  AND  SHIPPING.    See  also  Admiralty;  Commerce. 
implied  power  of  Congress  to  regulate  title  to  vessels,  108. 
implied  power  of  Congress  to  provide  for  registration  of  vessels, 

109. 
mortgages  of  vessels,  109. 
tonnage  duties  prohibited  to  the  States,  253. 

SLAVERY, 

prohibited  by  the  Thirteenth  Amendment,  511,  536,  541. 

SOVEREIGNTY.     See  State  Rights. 

limitations  of,  in  the  United  States  without  historical  precedent,  23. 

of  the  English  Parliament,  167,  213. 

limited  character  of  the  sovereignty  of    the  federal  government, 

24,  504,  532. 
of  the  States,  24,  532. 
•'  sovereign  "  synonymous  with  ''  supreme,"  1309. 

SPAIN, 

representative  government  in,  152. 

SPARKS  FROM  LOCOMOTIVES.     See  Railroads. 

SPY, 

citizen  acting  as,  may  be  executed  under  martial  law,  926. 

STAMPS.     See  Taxation. 

STAR  CHAMBER, 

judicial  functions,  163. 

STATE  CONVENTIONS.    See  Conventions  of  the  States. 

STATE  RIGHTS, 

integral  character  of  the  United  States,  12. 

the  States  never  had  national  existence,  14,  52. 

the  States  sovereign  but  not  independent,  15. 

supremacy  of  the  Constitution  and  laws  made  in  pursuance  thereof, 

26,  95,  257,  1309. 
nullification,  30,  134. 
relative  inferiority  of  the  States  shown  by  the  method  of  amending 

the  Convention,  30. 
by  the  constitutional  definition  of  treason,  31,  67,  1124. 
unlimited  except  by  the  United  States  Constitution,  94. 
States  may  forbid  any  persons  not  residents  from  planting  oysters  in 

navigable  waters,  512. 
State  cannot  be  sued  in  its  own  courts  without  its  consent,  632. 

STATES-GENERAL  OF  FRANCE, 
town  representation  in,  152. 
origin,  160. 


INDEX. 


1393 


STATUTES, 

are  prima  facie  declarations  of  legislative  purpose,  and  not  contracts, 
659,  671. 

constitutional  provisions  that  subject  of  must  be  denoted  in  their 
title,  660. 

"when  ambiguous,  construed  in  favor  of  the  public,  661. 

retroactive,  as  impairing  the  obligation  of  contracts,  677,  692. 

statutory  grant  cannot  be  set  aside  because  it  was  procured  by  fraud, 
736. 
STAY  OF  EXECUTION.    See  Execution. 
STEPHENS   (ALEXANDER  H.), 

misconception  of  the  work  of  the  Constitutional  Convention,  51. 

on  the  term  "  Federalist,"  83. 

on  the  use  of  the  words  '*  We  the  People  of  the  United  States,"  91. 
STOCK  IN -CORPORATIONS, 

where  taxable,  313. 

capital  stock  of,  distinguished  from  shares  of  stock,  329. 
STORY, 

on  the  question  of  making  cabinet  officers  responsible  to  Congress, 
176-178. 

on  the  taxing  power  of  Congress,  242. 
STRAFFORD, 

attainder  and  execution,  136. 

STREETS, 

assessments  for  opening,  301. 

fee  remains  in  owner  of  ground,  360. 

land  appropriated  for,  cannot  be  appropriated  to  a  different  purpose 

without  compensation  to  owner,  360. 
vacation  of,  376. 

change  of  grade  of,  no  compensation  for,  394,  401. 
statutory  right  to  compensation  for  such  injury  in  Pennsylvania, 

420. 
laying  railroad  tracks  in,  362,  412,  665. 
STREET  RAILWAYS, 

whether  laying  tracks  for,  entitles  neighboring  owners  to  damages, 

366. 
SUFFRAGE.     See  also  Elections. 

effects  of  granting  or  denying  it  to  immigrants,  5. 

household,  in  England,  6. 

national  citizenship  does  not  give  the  right  to  vote  for  national 

officers,  521. 
within  the  control  of  the  States,  521. 
bearing  of  the  Fifteenth  Amendment  on,  524. 
how  far  right  of,  may  be  enforced  by  Congress,  526. 
national  citizenship  pre-requisite  to,  529. 
conspiracy  to  prevent  citizens  from  voting  not  a  violation  of  the 

Fifteenth  Amendment,  526,  540. 


1394  INDEX. 

SUITS.     See  Federal  Courts. 

SUPREMACY  OF  THE  FEDERAL  GOVERNMENT.    See  State 

Rights. 
SUPREME  COURT   OF  THE  UNITED   STATES.    See  Judiciary 

(Federal). 

SURFACE  WATER, 

may  be  diverted  from  a  man's  own  land  although  the  flow  is  in- 
creased on  his  neighbor's,  410. 

rights  of  private  or  municipal  corporations  analogous  in  this  regard 
to  those  of  individuals,  410. 

cannot  be  turned  on  a  neighbor's  land  by  an  artificial  channel,  410. 

cannot  be  collected  in  reservoirs  without  liability  if  reservoir  breaks,  410. 

sewers  and  culverts  for,  411. 


T. 

TAKING  OF   LAND.    See  also  Eminent  Domain. 

what  constitutes  a  taking  under  the  right  of  eminent  domain,  383. 

TANEY, 

on  the  guaranty  of  Republican  State  governments,  126. 

TARIFF.     See  Protective  Tariff. 

TAXATION.     See  Eminent  Domain;  Exemption  from  Taxation. 

defined,  277,  279. 

distinguished  from  confiscation,  277, 604;  from  eminent  domain,  332. 

general  principles  of,  277,  315,  318. 

can  only  be  for  public  purposes,  278. 

by  municipalities,  power  of  legislature  over,  278-280. 

legislative  appropriation  of  money  raised  by  taxation  for  the  benefit 

of  individuals,  282. 
difficulty  of  defining  public  purposes,  283. 
for  individual  enterprises,  283. 

to  aid  in  rebuilding  a  town  destroyed  by  fire,  279,  284. 
for  schools,  almshouses,  and  hospitals,  284. 
to  repay  debts  by  private  individuals  for  public  purposes,  285. 
for  bounties  to  soldiers,  285. 
to  aid  in  the  construction  of  railroads,  286. 
for  pensions,  287. 

for  drainage,  dikes,  and  irrigation,  287-290,  306,  310. 
uniformity  of  taxation,  291-295, 

classification  for  purposes  of  taxation  a  legislative  function,  296. 
of  the  whole  for  the  benefit  of  a  part,  298. 
of  a  part  for  the  benefit  of  the  whole,  298,  301. 
by  municipality,  of  rural  property  for  urban  improvement,  299. 
of  a  part  for  damages  for  opening  streets,  301. 
in  proportion  to  benefit  the  true  rule  of  apportionment,  303,  310. 


INDEX.  1895 

TAXATION  —  continued. 

right  to  a  hearing,  315-317. 

person  or  thing  taxed  must  be  amenable  to  the  authority  laying  the 
tax,  317. 

jurisdiction  essential  to,  317,  327. 

of  property  of  non-residents,  318. 

of  persons  and  things  in  transitu,  321. 

of  rolling  stock  of  railroads,  322. 

of  business,  322. 

of  interstate  commerce,  323. 

of  foreign  corporations  by  a  State,  325. 

concurrent  taxation  by  the  States  and  the  United  States,  330. 

of  a  federal  corporation  by  a  State,  98. 

of  contracts,  sales,  etc.,  109. 

by  stamps,  109,  250. 

origin  of  Parliamentary  power  of  taxation,  149. 

power  of  Congress,  241. 

interpretation  of  Art.  I.,  Sec.  8  of  the  Constitution,  241. 

taxation  "  to  pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare,"  241. 

taxation  for  protection,  244. 

internal  improvements,  244. 

unlimited  nature  of  power  of,  245. 

distinction  between  expending  proceeds  of  taxation  on  internal 
improvements  and  assuming  control  of  such  improvements,  246, 
248. 

expenditure  of  the  proceeds  of  taxation  a  legislative  and  not  a  judi- 
cial power,  249. 

direct  taxes,  249. 

on  State  bank-notes,  249,  1275. 

income  tax  not  a  direct  tax  to  be  laid  according  to  the  census,  250. 

by  the  States,  251,  259. 

restrictions  on  State,  251,  261. 

State  cannot  discriminate  against  sales  of  products  of  other  States 
and  in  favor  of  its  own,  251,  252,  467. 

may  lay  a  uniform  tax  on  both,  252. 

imported  liquors  not  exempt  from  State  license  or  prohibitory  laws, 
252. 

State  tax  on  imports  from  other  States  must  not  operate  as  a  regula- 
tion of  commerce,  253,  271,  467. 

tonnage  duties  prohibited  to  the  States,  253. 

discrimination  in,  as  between  citizens  of  different  States,  253. 

States  may  tax  vessels  according  to  their  value,  254. 

State  tax  on  income  derived  from  property  employed  in  interstate 
commerce,  valid,  254. 

implied  restraints  on  State  taxation,  255. 

State  cannot  tax  property  of  the  general  government,  255,  258. 
nor  a  corporation  chartered  by  it,  255. 
nor  bonds  or  loans  issued  by  it,  258. 


1396  INDEX. 

TAXATION  —  continued. 

stockholders  of  a  national  bank  may  be  taxed  by  the  States  for  the 

value  of  their  respective  shares,  259. 
property  of  a  private  corporation  created  by  Congress  may  be  taxed 

by  the  States,  259. 
agencies  of  the  States  cannot  be  taxed  by  the  national  government, 

265. 
interstate  ferries,  telegrams,  and  sleeping-cars  not  taxable  by  States, 

271,  323,  482. 
State  tax  on  interstate  freight  invalid,  272. 
State  tax  on  capital  or  general  receipts  of  a  company  engaged  in 

interstate  commerce,  valid,  272. 
unequal  taxation  by  States  invalid,  273,  276. 
discrimination  against  goods  of  another  State,  273,  469. 
power  of  Congress  to  tax  distinguished  from  its  power  to  regulate 

commerce,  436,  463. 
power  to  tax  concurrent  with  States,  436. 
exemption  from,  may  operate  as  a  contract,  587,  604. 
exemption  from,  a  personal  privilege,  605. 
power  of,  contrasted  with  the  police  power,  620. 
municipal  corporations  may  be  compelled  by  mandamus  to  levy  taxes 

to  pay  debts,  639. 
statute  impairing  right  of  municipal  corporations  to  lay  taxes  to  pay 

debts  invalid,  647. 
collateral  inheritance  tax  operating  retrospectively  valid,  807. 

TECHNICAL   DEFENCE, 

law  obviating  a,  does  not  impair  the  obligation  of  contracts,  712. 

TELEGRAPH, 

is  an  instrument  of  commerce,  784. 

interstate  telegrams  not  taxable  by  State,  271,  784. 

Congress  may  assume  exclusive  control  of,  482. 

TENANCY  BY   THE  CURTESY, 

whether,  it  is  property  within  the  meaning  of  the  constitutional  pro- 
tection, 826. 

THIRTEENTH  AMENDMENT.     See  Amendments. 
slavery  prohibited  by,  511,  536. 

TITLE, 

of  statutes,  660. 

TRADE-MARKS, 

power  of  Congress  to  regulate,  441-446. 

TREASON.     See  also  Federal  Courts. 

treason  in  the  sense  of  the  common  law  ceased  to  exist  in  this  coun- 
try on  the  declaration  of  independence,  1125. 
what  constitutes,   in  England  and  under  the  Constitution  of  the 
United  States,  67,  1122-1128. 


INDEX. 


1397 


TREASON  —  continued. 

levying  war  against  the  United  States  at  the  command  of  a  State 
treasonable,  67,  1124. 

armed  resistance  to  an  unconstitutional  law  not  treasonable,  68, 
1128. 

legal  standard  in  such  cases  is  the  Constitution  as  interpreted  by  the 
Supreme  Court,  68. 

a  conspiracy  to  subvert  the  government  constitutes,  in  most  coun- 
tries but  not  in  the  United  States,  1127,  1128. 

such  an  offence  may  be  declared  criminal  by  Congress,  1128. 

TREATIES, 
defined,  435. 
power  to  make,  15,  171. 

power  to  regulate  commerce  may  be  exercised  by  treaty,  435. 
may  be  rescinded  by  Congress,  436. 
a  law  contrary  to  a,  binding  on  the  courts,  439,  502. 

TRIAL  BY  JURY, 

guaranteed  in  the  Constitution  and  by  the  Fifth  Amendment  against 

the  United  States,  505,  800,  964. 
guarantee  cannot  be  superseded  by  a  declaration  of  martial  law,  505, 

958-968. 
nor  by  the  suspension  of  the  writ  of  habeas  corpus,  505,  966. 
how  far  guaranteed  against  the  States,  515,  858. 
in  criminal  cases,  859. 

not  essential  to  "  due  process  of  law,"  858-864. 
in  Pennsylvania,  may  be  withheld  in  creating  new  offences,  861. 
States  may  dispense  with,  862. 
how  far  secured  by  the  State  organic  laws,  866. 
summary  proceedings  valid  where  jury  trial  may  be  had  on  appeal, 

867. 
exacting  an  affidavit  of  defence  does  not  contravene,  868. 
instances  in  which  jury  trials  are  dispensed  with,  568-873. 
chancery  proceedings,  868. 
proceedings  on  quo  wajranto,  868. 
contempt,  869. 
land  damages,  869. 
tax  assessments,  871. 
proceedings  to  disbar  an  attorney,  873. 
power  to  non-suit  does  not  violate  right  to,  876. 
waiver  of  right  to,  in  case  of  sureties  of  tax  collectors,  877. 
waiver  of  right  to,  in  case  of  corporations,  879. 

TRUSTS, 

trustees  may  be  appointed  by  the  legislature  over  property  bequeathed 
to  a  municipal  corporation  for  a  charitable  purpose,  634. 
TURNPIKES, 

exclusive  right  to  build,  between  two  points  may  be  granted,  782. 

"  TWICE  IN  JEOPARDY,"  570. 


1398  INDEX. 

u. 

UNIFORMITY, 

of  taxation,  291-295. 

UNREASONABLE  SEARCHES  AND  SEIZURES.    See  Searches 
AND  Seizures. 

USURY, 

statutes  confirming  usurious  contracts  valid,  791. 

effect  of  statutes  repealing  usury  laws  on  existing  contracts,  792, 839. 

V. 

VIRGINIA, 

in  the  Constitutional  and  State  Convention,  50,  70. 
coupon  cases,  705. 

VESSELS.     See  Ships  and  Shipping. 
United  States,  see  Government  of. 

VESTED   RIGHTS, 

Congress  cannot  abrogate,  754. 

VETO  POWER, 

has  practically  become  extinct  in  England,  186,  212. 
in  the  United  States,  211. 
Jackson's  veto  of  the  Bank  Act,  212. 
Grant's  veto  of  the  Legal  Tender  Act,  212. 
vetoes  of  President  Hayes,  213. 

Madison's  veto  of  bills  for  internal  improvements,  246. 
VOTERS.    See  Suffrage;  Elections. 

w. 

WAR.     See  Martial  Law. 
power  to  declare,  15. 
powers  of  the  American  and  English  executives  as  to  war  contrasted, 

171.  174. 
destruction  of  private  property  in,  to  prevent  its  capture,  763,  910. 
powers  of  the  general  government  in  a  state  of,  905. 
necessity  as  a  justification  in  peace  and  war,  908-913,  921,  967. 
a  soldier  may  be  answerable  for  obeying  his  officer,  914. 
in  the  absence  of  a  reasonable  and  probable  cause  for  the  order,  917- 

920. 
probable  cause  a  question  for  the  court,  919. 

citizen  may  be  executed  for  acting  as  a  spy  under  martial  law,  926. 
power  of  commanding  officer  considered,  925,  931,  967. 
jurisdiction  of  court-martial,  926,  933,  936,  950. 
military  law  defined,  930. 
military  government,  930,  945. 
martial  law,  930. 


INDEX. 


1399 


WAR  —  continued. 

officers  accountable  to  the  civil  courts  for  their  conduct  to  men  under 
their  command,  931. 

soldiers  may  be  punished  both  by  courts-martial  and  the  civil  tribu- 
nals, 935. 

Congress  cannot  exempt  officers  and  soldiers  from  liability  for  viola- 
tion of  State  laws,  935. 

jurisdiction  of  the  military  tribunals  subordinate,  936-942. 

English  Mutiny  Act,  942. 

American  Articles  of  War,  944. 

confiscation  of  enemies'  property,  946,  947. 

inhabitants  of  hostile  territory  may  be  treated  as  enemies,  948. 

martial  law  may  grow  out  of  the  necessity  arising  from  the  exigencies 
of  war,  910,  923-927,  968. 

cannot  be  established  by  Congress  when  such  necessity  does  not  exist, 
958,  968. 

insurgents  may  be  treated  as  enemies,  922,  926,  968. 

payment  under  military  duress  not  a  defence  against  a  creditor,  972. 

recent  extensions  of  the  military  power,  978. 

WARRANTS.     See  Searches  and  Seizures. 

general,  their  illegality,  831. 

Lord  Mansfield  on,  831, 

Lord  Camden  on,  831. 
WASHINGTON, 

his  early  career  as  an  exemplification  of  American  character,  7. 

considered  the  United  States  a  unit,  12. 

never  claimed  a  national  existence  for  the  States,  14,  15. 

apprehensions  for  the  result  of  the  discontent  succeeding  the  Revolu- 
tion, 18. 

President  of  the  Constitutional  Convention,  20,  46. 

influence  in  securing  the  adoption  of  the  Constitution,  40,  41,  42,  43. 

elected  President,  45. 

on  the  power  of  Congress  to  incorporate  banks,  108. 

his  foreign  policy,  172. 

WATERCOURSES, 

power  over,  under  eminent  domain,  288,  339,  348,  393. 

stream  may  be  diverted  for  water  supply  under  eminent  domain,  339, 
348. 

dams  across,  for  manufacturing  purposes,  340-343. 

obstruction  of,  360. 

what  constitutes  a  taking  of,  381. 

rendering  a  stream  impure  without  negligence  is  damnum  absque  in- 
juria in  Pennsylvania,  399. 

WATER  RIGHTS, 

riparian  owner  may  be  legislatively  authorized,  on  compensation 
made,  to  erect  a  dam,  although  the  land  of  other  owners  is  thereby 
overflowed,  341-343. 


1400 


INDEX. 


WAYS.     See  Highways;  Private  Ways;  Streets. 

"  WE,  THE  PEOPLE  OF  THE  UNITED  STATES,'* 

significance  of  this  phrase,  86. 

WEBSTER, 

on  enumerated  and  implied  powers,  96, 107. 

on  constitutional  limitations,  121. 

on  protective  tariff,  134. 

on  power  of  Congress  to  regulate  commerce,  430. 

on  their  power  to  regulate  the  currency,  1249,  1265. 

to  make  paper  a  legal  tender,  1249,  1265. 

on  impairing  the  obligation  of  contracts,  597. 

WESTMINSTER,  STATUTE  OF, 

election  of  sheriffs  and  coroners  under,  150. 

WHIPPLE, 

on  constitutional  limitations,  122. 

WILKES, 

verdict  against  Halifax  for  false  arrest,  etc.,  137,  140,  831. 

WILL, 

retroactive  confirmation  of  an  invalid,  unconstitutional,  802-807. 

WILSON, 

on  the  Pennsylvania  Convention,  41,  74,  82,  84,  93. 

WITENAGEMOTE, 

character  and  influence,  149. 

WITNESSES, 

persons  not  compellable  to  be,  against  themselves,  833-836. 
power  of  Congress  to  compel  the  attendance  of,  852. 
city  council  cannot  commit,  856. 

WRIT  OF  ERROR, 

right  to,  cannot  be  revived  after  it  has  expired  by  lapse  of  time,  838. 

WRITTEN   CONSTITUTION, 

advantages  and  disadvantages  of,  214. 


Y. 

YATES, 

withdrawal  from  the  Constitutional  Convention,  34,  39. 


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